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HORNBOOK  CASE  SERIES 


ILLUSTRATIVE  CASES 

ON 

PERSONS  AND  DOMESTIC 

RELATIONS 


By  ROGER  W.  COOLEY 

Professor  of  Law,  University  of  North  Dakota 

Author  of  "Briefs  on  the  Law  of  Insurance,"  "Illustrative  Cases  on 
Damages,"  and  "Illustrative  Cases  on  Insurance" 


A  COMPANION  BOOK  TO  TIFFANY  ON  PERSONS 
AND  DOMESTIC  RELATIONS  (3d  Ed.) 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 

1913 


COPYEIGHT,     1913 
BY 

WEST   PUBLISHING   COMPANlf 
(COOLET  P.&  D.Rel.) 


(a  I  FT 
v-M 


THE  HORNBOOK   CASE   SERIES 


It  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

West  Publishing  Company. 
(iii)* 


TABLE  OF  CONTENTS 


Part  I 
HUSBAND  AND  WIFE 

MARRIAGE 

Page 

I.     Definition   of  ISIarriage 1 

II.     Mutual    Consent 6 

III.  Reality  of  Consent 11 

1.  Fraud    H 

2.  Duress    15 

IV.  Mental  Capacity  of  the  Parties — Insanity 17 

v.     Same — Nonage    19 

VI.     Capacity  of  Parties  Otherwise  than  Mentally — Prior  Marriage....  24 

VII.     Formalities  in  Celebration — Informal  Marriages 25 

VIII.    Conflict  of   Laws 35 

RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

I.     Rights  to  Determine  Family  Domicile 41 

II.    Torts  of  Married  Women 44 

III.  Torts  Against  Married  Women 50 

IV.  Action  for  Enticing  or  Alienation  of  Affection 52 

RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

I.     Wife's    Earnings 57 

II.    Wife's  Personalty  in  Possession 63 

III.  Wife's  Choses  in  Action 64 

1.  At  Common  Law 64 

2,  Effect  of  Modern  Statutes 66 

IV.  Wife's  Estates  of  Inheritance 69 

V.    Estates  by  the  Entirety 74 


CONTRACTS,   COm'EYANCES,   ETC.,  AND  QUASI 
CONTRACTUAL  OBLIGATIONS 

I.    Contracts   of  Wife 79 

II.     Conveyances,  Sales,  and  Gifts  by  Wife 80 

III.    Contracts  by  Wife  as  Husband's  Agent 84 

CooLET  P.&  D.Rel.  (t) 


▼1  TABLE   OF   CONTENTS 


WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE 

Page 

I.  Power  to  Dispose  of  Equitable  Separate  Estate 92 

II.  Power  to  Charge  Equitable  Separate  Estate  by  Contract 95 

III.  Statutory  Separate  Estate 98 

IV.  Power  to  Dispose  of  Statutory  Separate  Estate 102 

V.  Power  to  Charge  Statutory  Separate  Estate  by  Contract 105 

ANTENUPTIAL  AND   POSTNUPTIAL   SETTLEMENTS 

I.    Antenuptial    Settlements 113 

II.     Postnuptial    Settlements 119 

SEPARATION  AND   DIVORCE 

I.  Agreements  of  Separation 124 

II.  Jurisdiction  to  Grant  Divorce 127 

III.  Grounds  for  Divorce — Cruelty 131 

IV.  Same— Desertion    134 

V.  Defenses — Connivance    137 

VI.     Same — Condonation    , 139 

VII.     Same — Recrimination     141 

YIII.     Extraterritorial  Effect  of  Divorce 144 


Part  II 
PARENT  AND  CHILD 

LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION 

I.     Legitimacy  of  Children 157 

II,     Adoption  of  Children 161 

III.     Status  of  Illegitimate  Children 164 

DUTIES  AND  LIABILITIES  OF  PARENTS 

I.     Parent's  Duty  to  Maintain  Child 168 

II.     Contracts  by  Child  as  Parent's  Agent 172 

IIL     Parent's  Liability  for  Child's  Torts 174 

RIGHTS  OF  PARENTS  AND  OF  CHILDREN 

I.     Parent's  Right  to  Correct  Child. 180 

II.     Custody   of   Children 182 

III.  Parent's  Right  to  Child's  Services  and  Earnings 190 

IV.  Emancipation  of  Children 193 

V.     Action  by  Parent  for  Injuries  to  Child 198 

VI.     Action  by  Parent  for  Seduction  or  Debauching  of  Daughter 204 

VII.     Gifts,  Conveyances,  and  Contracts  Between  Parent  and  Child....  206 


TABLE  OF   CONTENTS  VU 

Part  III 

GUARDIAN  AND  WARD 

GUARDIANS— SELEC?TION    AND    APPOINTMENT 

Page 

I.     Selection  and  Appointment  of  Guardians  by  the  Court 210 

II.    Jurisdiction  to  Appoint  Guardian 212 

RIGHTS,  DUTIES.  AND  LIABILITIES  OF  GUARDIANS 

I.  Maintenance  of  Ward — Use  of  Principal  of  Estate 215 

II.  Change  of  Ward's  Domicile  by  Guardian 217 

III.  Management  of  Estate — Guardianship  as  a  Trust 217 

IV.  Same — Collection  and  Protection  of  Property 222 

V.  Same — Investments    230 

TERMINATION  OF  GUARDIANSHIP— ENFORCING 
GUARDIAN'S  LIABILITY 

I.    Guardians'    Bonds 240 


Part  IV 

INFANTS,  PERSONS  NON  COMPOTES  MENTIS,  AND 

ALIENS 

INFANTS 

I.     Infancy    Defined , 245 

II.     Privileges  and  Disabilities 246 

1.     Capacity  to  Sue  and  Defend 246 

III.  Contracts  of  Infants 249 

IV.  Same — Liability  for  Necessaries 257 

V.     Same — Ratification  and  Disaflirmance 262 

VI.     Same — Time  of  Avoidance 263 

VII.     Same — Who  may  Avoid  Contract 270 

VIII.     Same— What  Constitutes   Ratification 271 

IX.     Same — What  Constitutes  Disatfirmauce 276 

X.     Same — Return  of  Consideration 27S 

XI.    Liability  of  Infants  for  Torts 282 

PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS 

L     Contracts  of  Insane  Persons 289 

11.     Contracts  of  Drunken  Persons 290 

IIL     Aliens    293 


Viii  TABLE   OF  CONTENTS 

Part  V 
MASTER  AND  SERVANT 

MASTER  AND  SERVANT 

Page 

I.     Creation  of  the  Relation 300 

11.    Termination  of  the  Relation 303 

1.  Breach  by  Master 303 

2.  Breach  by   Servant 309 

III.  Remedies  for  Breach  of  Contract— Damages 314 

IV.  Rights,  Duties,  and  Liabilities  Inter  Se 318 

1.     Right  to  Wages 318 

V.     Same — Master's  Liability  for  Injuries  to  Servant 320 

1.  Defective    Appliances 320 

2.  Assumption   of  Risk 323 

3.  Negligence  of  Fellow  Servants 331 


TABLE   OF    CASES 


Page 
Abrams  v.  United  States  Fidelity 

&  Guaranty  Co 222 

Arnold  v.  Limeburger 71 

Ball  V.  Lovett 85 

Beickler  v.  Guenther 256 

Bergh  v.  Warner 85 

Bernard  v.  Pittsburgh  Coal  Co..  246 
Biggs  V.  St.  Louis,  I.  M.  &  S.  R. 

Co 190 

Bisbee  v.  Gleason 2i0 

Blaechinska  v.  Howard  Mission  & 

Home  for  Little  Wanderers....  57 

Booth  V.  Wilkinson 217 

Brady,  In  re 212 

Brittiugbam  v.  Stadiem 177 

Cameron-Barkley  Co.  v.  Thornton 

Light  &  Power  Co 290 

Chaee,  Ex  parte 35 

Choctaw,  O.  &  G.  R.  Co.  v,  Jones  323 

Churchill  v.  White 285 

Clague  V.  Clague 139 

Clapp  V.  Inhabitants  of  Stoughton  69 

Clothier  v.   Sigle 88 

Clow  V.  Brown 119 

CoursoUe  v.  Weyerhauser 249 

Craig  V.  Van  Bebber 278 

Croan  v.  Phelps 164 

Cushman  v.  Cushman 143 

Damron  v.  Ratliff 274 

Davidson  v.  Laughlin 319 

Detroit  Chamber  of  Commerce  v. 

Goodman  105 

Drummond  v,   Irish 24 

Duffy  V.  Williams 215 

Elghmy  v.  Brock 206 

Eliot  V.  Eliot 19 

Ellis  V.  Ellis 127 

Evans  v.  Faircloth-Byrd  Mercan- 
tile Co no 

Farrar  v.  Bessey 79 

Feiner  v.  BojTiton 84 


Page 

Fletcher  v.  People 181 

Frost  V.  Frost 74 

Gall  V.  Gall 28 

Gilmore  v.  Kitson 182 

Gonackey  v.  General  Accident,  Fire 

&  Life  Assur.  Corp 280 

Goodnow  V.  Empire  Lumber  Co. .  2G7 
Grauman,    Marx   &   Cline    Co.    v. 

Krienitz 251 

Guilmartin  v.  Solvay  Process  Co.  338 

Haddock  v.  Haddock 144 

Harris  v.  Spencer 102 

Harvey  v.  Briggs 270 

Hatch  V.  Hatch 271 

Haynes  v.  Bennett 276 

Hiett  V.  Hiett 124 

Hussey  v.  Whiting 186 

Ingalls  V.  Allen 300 

lona  Sav.  Bank  v.  Boynton 112 

Jerome  v.  Queen  City  Cycle  Co..  309 
Johnson  v.  Johnson's  Committee..  66 
Jordan  v.  Jordan 63 

Kellar  v.  James 46 

Kilgore  V.  Rich 257 

Kuhn  V.  Ogilvie 109 

Lamar  v.  Micou 217,  230 

Lane  v.   Soulard SO 

Lehman  v.  State  ex  rel.  Miller. .  293 

Lessoff  V.  Gordon 174 

Lewis  V.  Lewis 17 

Louisville  &  N.  R.  Co.  v.  Brown  331 
Lyon  V.  Lyon 11 

McCarthy  v.  Boston  &  L.  R.  Corp.  200 

McCrady  v.  Pratt 172 

McKelvey  v.  McKelvey 180 

McMullen  v.  Dickinson  Co 314 

Marquette    Cement    Mfg.    Co.    v. 
Williams 335 


COOLEY  P.&  DREL. 


(ix) 


TABLE   OF  CASES 


Page 
Mauldln  r.  Southern  Shorthand  &. 

Business  University 259 

Maynard  v.  Hill 1 

Middleton  v.  Nichols 204 

Mitchell  V.  Kelly 242 

Murphy  v.  Grand  Rapids  Veneer 

Works 329 

Nelichka  v.  Esterly  &   Heineman  318 
Netherland-American  Steam  Nav. 

Co.  V.  Hollander 198 

Norris  v.  Corkill 44 

Nuding  V.  Uriah 61 

Pease  v.  Pease 141 

Phillips  V.  Lloyd 261 

Porter  v.  Powell 168 

Price  V.  Price 41 

Provost  V.  Provost 13G 

Quinlan  v.  Lackawanna  Steel  Co. .  336 

Rader  v.  Rader 133 

Rent  row  v.  Renfrew 25 

Rounds  Bros.  v.  McDaniel 193 

Roush  V.  Griffith 226 

Scanlon  v.  Walshe 157 

Shoro  V.  Shoro 15 

Shroyer  v.  Pittenger 263 

Sidway  v.   Nichol 98 

Sims  Y.  Sims 52 


Page 

Skoglund  V.  Minneapolis  St.  R.  Co.     50 

Sorrells  v.   Matthews 200 

Sparks  v.   River  &   Harbor   Imp. 

Co 320 

Spurlock  V.  Brown 113 

State  V.  Clarke 245 

State  ex  rel.  Scott  v.  Lowell ....     22 

Steinfield  v.  Girrard 89 

Swartwood  v.  Chance. 289 

Tanner's  Estate,   In  re 219 

Thomas  v.  Malone 161 

Trenchard  v.  Trenchard 131 

TuUy,  In  re 210 

Turner  v.  Shaw 92 

University    of    Michigan    v.    Mc- 
Guckin  6 

Viertel  v.  Viertel 137 

Ward  V.  Ward 189 

Watson  v.  Watson 134 

Weaver  v.  Glenn 247 

Webster  v.  Helm 95 

Wells  V.  Tyler 64 

Wharton  v.  Christie 303 

Wicker  v.  Durr 104 

"W'uller  v.  Chuse  Grocery  Co 262 

Young  V.  Muhling 282 


^ 


HORNBOOK  CASES 

ON  THE  LAW  OF 

PERSONS  AND  DOMESTIC 

RELATIONS 


PART  I 
HUSBAND  AND  WIFE 


MARRIAGE 
I.  Definition  of  Marriage^ 


MAYNARD  v.  HILL. 

(Supreme  Court  of  United  States.  1S8S.     125  U.  S.  190,  8  Sup.  Ct  723,  31 

L.  Ed.  654.) 

This  is  a  smt^in  ec[uity,  brought  by  Henry  C.  Maynard  and 
Frances  J.  Patterson  against  Hill  and  others  to  charge  defend- 
ants as  trustees  of  certain  lands.  Plaintiffs  are  the  children  of 
David  S.  Maynard  and  Lydia  A.  Maynard,  who  were  married  in 
Vermont  in  1828  and  who  lived  there  as  husband  and  wife  until 
1850.  In  that  year  the  family  moved  to  Ohio,  and  David  S.  May- 
nard, leaving  his  family  there,  went  West  finally  settling  in  Ore- 
gon territory,  in  that  part  now  (1888)  included  in  the  territory  of 
Washington.  In  April,  1852,  David  S.  Maynard  settled  on  and 
claitned  the  lands  in  controversy  under  the  act  of  congress  of 
September  27,  1850  (9  Stat.  496,  c.  76),  providing  for  donations 
to  actual  settlers  on  certain  public  lands.  In  December,  1852,  an 
act  was  passed  by  the  legislative  assembly  of  the  territory  of  Ore- 
gon purporting  to  dissolve  the  bonds  of  matrimony  between  David 
S.  and  Lydia  A.  Maynard.     Maynard  subsequently  married  again. 

1  For  discussion  of  principles,  see  Tiffany,  Persons  and  Dom.  Kel. (3d  Ed.) 
§§  1-3. 

COOLEY  P.&  D.REL.— 1 


^  MARRIAGE 

The  plaintiffs  claim  the  lands  as  heirs  of  Lydia  A.  Maynard.  A 
judgment  for  the  defendants  having  been  affirmed  by  the  supreme 
court  of  the  territory  of  Washington  (2  Wash.  T.  321,  5  Pac.  717), 
the  plaintiffs  appeal. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court.*  *  *  * 
The  act  of  congress  creating  the  territory  of  Oregon  *  *  * 
vested  the  legislative  power  and  authority  of  the  territory  in  an 
assembly  consisting  of  two  boards,  a  council  and  a  house  of  rep- 
resentatives. Act  Aug.  14,  1848,  c.  177,  §  4,  9  Stat.  324.  It  de- 
clared that  the  legislative  power  of  the  territory  should  "extend 
to  all  rightful  subjects  of  legislation  not  inconsistent  with  the 
constitution  and  laws  of  the  United  States."     *     *     * 

Marriage,  as  creating  the  most  important  relation  in  life,  as  hav- 
ing more  to  do  with  the  morals  and  civilization  of  a  people  than 
any  other  institution,  has  always  been  subject  to  the  control  of 
the  legislature.  That  body  prescribes  the  age  at  which  parties  may 
contract  to  marry,  the  procedure  or  form  essential  to  constitute 
marriage,  the  duties  and  obligations  it  creates,  its  effects  upon  the 
property  rights  of  both,  present  and  prospective,  and  the  acts  which 
may  constitute  grounds  for  its  dissolution. 

It  is  conceded  that  to  determine  the  propriety  of  dissolving  the 
marriage  relation  may  involve  investigations  of  a  judicial  nature, 
which  can  properly  be  conducted  by  the  judicial  tribunals.  Yet, 
such  investigations  are  no  more  than  those  usually  made  when  a 
change  of  the  law  is  designed.  They  do  not  render  the  enactment, 
which  follows  the  information  obtained,  void  as  a  judicial  act  be- 
cause it  may  recite  the  cause  of  its  passage.  Many  causes  may 
arise,  physical,  moral,  and  intellectual,  such  as  the  contracting  by 
one  of  the  parties  of  an  incurable  disease  like  leprosy,  or  confirmed 
insanity,  or  hopeless  idiocy,  or  a  conviction  of  a  felony,  which 
would  render  the  continuance  of  the  marriage  relation  intolerable 
to  the  other  party,  and  productive  of  no  possible  benefit  to  society. 
When  the  object  of  the  relation  has  been  thus  defeated,  and  no 
jurisdiction  is  vested  in  the  judicial  tribunals  to  grant  a  divorce,  it 
iTTTotperceived  that  any  principle  should  prevent  the  legislature 
TfseTf  from  interfering,  and  putting  an  end  to  the  relation  in  the 
interest  of  the  parties  as  well  as  of  society.  If  the  act  declaring 
the  divorce  should  attempt  to  interfere  with  the  rights  of  property 
vested  in  either  party,  a  different  question  would  be  presented. 

When  this  country  was  settled,  the  power  to  grant  a  divorce 
from  the  bonds  of  matrimony  was  exercised  by  the  parliament  of 
England.  The  ecclesiastical  courts  of  that  country  were  limited 
to  the  granting  of  divorces  from  bed  and  board.  Naturally,  the 
legislative  assemblies  of  the  colonies  followed  the  example  of  par- 
liament and  treated  the  subject  as  one  within  their  province.    And, 

2  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


DEFINITION    OF   MARRIAGE  3 

until  a  recent  period,  legislative  divorces  have  been  granted,  with 
few  exceptions,  in  all  the  states.     *     *     * 

The  adoption  of  late  years,  in  many  constitutions,  of  provisions 
prohibiting  legislative  divorces  would  also  indicate  a  general  con- 
viction that,  without  this  prohibition,  such  divorces  might  be 
granted,  notwithstanding  the  separation  of  the  powers  of  govern- 
ment into  departments,  by  which  judicial  functions  are  excluded 
from  the  legislative  department.  There  are,  it  is  true,  decisions 
of  state  courts  of  high  character,  like  the  supreme  court  of  Massa- 
chusetts and  of  Missouri,  holding  differently ;  some  of  which  were 
controlled  by  the  peculiar  language  of  their  state  constitutions. 
Sparhawk  v.  Sparhawk,  116  Mass.  315;  State  v.  Fry,  4  Mo.  120, 
138.  The  weight  of  authority,  however,  is  decidedly  in  favor  of  the 
position  that,  in  the  absence  of  direct  prohibition,  the  power  over 
divorces  remains  with  the  legislature.  We  are  therefore  justified) 
in  holding— more,  we  are  compelled  to  hold,  that  the  granting  of| 
divorces  was  a  rightful  subject  of  legislation  according  to  the  pre- 
vailing judicial  opinion  of  the  country,  and  the  understanding  of 
the  profession  at  the  time  the  organic  act  of  Oregon  was  passed 
by  congress,  when  either  of  the  parties  divorced  was  at  the  time 
a  resident  within  the  territorial  jurisdiction  of  the  legislature. 
*     *     * 

The  organic  act  extends  the  legislative  power  of  the  territory 
to  all  rightful  subjects  of  legislation  "not  inconsistent  with  the 
constitution  and  laws  of  the  United  States."  The  only  inconsist- 
ency suggested  is  that  it  impairs  the  obligation  of  the  contract  of 
marriage.  Assuming  that  the  prohibition  of  the  federal  constitu- 
tion against  the  impairment  of  contracts  by  state  legislation  ap- 
plies equally,  as  would  seem  to  be  the  opinion  of  the  supreme  court 
of  the  territory,  to  legislation  by  territorial  legislatures,  we  are 
clear  that  marriage  is  not  a  contract  within  the  meaning  of  the 
prohibition.  As  was  said  by  Chief  Justice  Marshall  in  the  Dart- 
mouth College  Case,  not  by  way  of  judgment,  but  in  answer  to 
objections  urged  to  positions  taken:  "The  provision  of  the  con- 
stitution never  has  been  understood  to  embrace  other  contracts 
than  those  which  respect  property  or  some  object  of  value,  and 
confer  rights  which  may  be  asserted  in  a  court  of  justice  It  never 
has  been  understood  to  restrict  the  general  right  of  the  legisla- 
ture to  legislate  on  the  subject  of  divorces."  And  in  Butler  v. 
Pennsylvania,  10  How..  402,  13  L.  Ed.  472,  where  the  question 
arose  whether  a  reduction  of  the  per  diem  compensation  to  certain 
canal  commissioners  below  that  originally  provided  when  they 
took  office,  was  an  impairment  of  a  contract  with  them  within  the 
constitutional  prohibition ;  the  court,  holding  that  it  was  not  such 
an  impairment,  said:  "The  contracts  designed  to  be  protected  by 
the  tenth  section  of  the  first  article  of  that  instrument  are  con- 


4  MARRIAGE 

tracts  by  which  perfect  rights,  certain,  definite,  fixed  private  rights 
■"ot  property,  are  vested."    '  •, 

It  is  also  to  be  observed  that,  while  marriage  is  often  termed 
by  text  writers  and  in  decisions  of  courts  a  civil  contract,  gen- 
erally to  indicate  that  it  must  be  founded  upon  the  agreement  of  the 
parties,  and  does  not  require  any  religious  ceremony  for  its  sol- 
emnization, it  is  something  more  than  a  mere  contract.  The  con- 
sent of  the  parties  is  of  course  essential  to  its  existence,  but  when 
the  contract  to  marry  is  executed  by  the  marriage,  a  relation  be- 
tween the  parties  is  created  which  they  cannot  change.  Other 
contracts  may  be  modified,  restricted,  or  enlarged,  or  entirely  re- 
leased upon  the  consent  of  the  parties.  Not  so  with  marriage.  The 
relation  once  formed,  the  law  steps  in  and  holds  the  parties  to  vari- 
ous obligations  and  liabilities.  It  is  an  institution,  in  the  mainte- 
nance of  which  in  its  purity  the  public  is  deeply  interested,  for  it 
is  the  foundation  of  the  family  and  of  society,  without  which  there 
would  be  neither  civilization  nor  progress. 

This  view  is  well  expressed  by  the  supreme  court  of  Maine  in 
Adams  v.  Palmer,  51  Me.  481,  483.  Said  that  court,  speaking  by 
Chief  Justice  Appleton :  "When  the  contracting  parties  have  en- 
tered into  the  married  state,  they  have  not  so  much  entered  into  a 
contract  as  into  a  new  relation,  the  rights,  duties,  and  obligations  of 
which  rest  not  upon  their  agreement,  but  upon  the  general  law  of 
the  state,  statutory  or  common,  which  defines  and  prescribes  those 
rights,  duties,  and  obligations.  They  are  of  law,  not  of  contract.  It 
was  a  contract  that  the  relation  should  be  established,  but,  being  es- 
tablished, the  power  of  the  parties  as  to  its  extent  or  duration  is  at 
an  end.  Their  rights  under  it  are  determined  by  the  will  of  the 
sovereign,  as  evidenced  by  law.  They  can  neither  be  modified  nor 
changed  by  any  agreement  of  parties.  It  is  a  relation  for  life,  and 
the  parties  cannot  terminate  it  at  any  shorter  period  by  virtue  of 
any  contract  they  may  make.  The  reciprocal  rights  arising  from 
this  relation,  so  long  as  it  continues,  are  such  as  the  law  deter- 
mines from  time  to  time,  and  none  other."  And  again :  "It  is  not 
then  a  contract  within  the  meaning  of  the  clause  of  the  constitu- 
tion which  prohibits  the  impairing  the  obligation  of  contracts.  It 
is  rather  a  social  relation  like  that  of  parent  and  child,  the  obliga- 
tions of  which  arise  not  from  the  consent  of  concurring  minds,  but 
are  the  creation  of  the  law  itself,  a  relation  the  most  important,  as 
affecting  the  happiness  of  individuals,  the  first  step  from  barbarism 
to  incipient  civilization,  the  purest  tie  of  social  life,  and  the  true 
basis  of  human  progress."  And  the  chief  justice  cites  in  support  of 
this  view  the  case  of  Maguire  v.  Maguire,  7  Dana  (Ky.)  181,  183, 
and  Ditson  v.  Ditson,  4  R.  I.  87,  101. 

In  the  first  of  these  the  supreme  court  of  Kentucky  said  that 
marriage  was  more  than  a  contract ;  that  it  was  the  most  elemen- 
tary and  useful  of  all  the  social  relations ;    was  regulated  and  con- 


DEFINITION    OF    MARRIAGE  6 

trolled  by  the  sovereign  power  of  the  state,  and  could  not,  like 
mere  contracts,  be  dissolved  by  the  mutual  consent  of  the  con- 
tracting- parties,  but  might  be  abrogated  by  the  sovereign  will 
whenever  the  public  good,  or  justice  to  both  parties,  or  either  of 
the  parties,  would  thereby  be  subserved;  that  being  more  than 
a  contract,  and  depending  especially  upon  the  sovereign  will,  it 
was  not  embraced  by  the  constitutional  inhibition  of  legislative 
acts  impairing  the  obligation  of  contracts.  In  the  second  case  the 
supreme  court  of  Rhode  Island  said  that  "marriage,  in  the  sense 
in  which  it  is  dealt  with  by  a  decree  of  divorce,  is  not  a  contract, 
but  one  of  the  domestic  relations.  In  strictness,  though  formed 
by  contract,  it  signifies  the  relation  of  husband  and  wife,  deriving 
both  its  rights  and  duties  from  a  source  higher  than  any  contract 
of  which  the  parties  are  capable,  and,  as  to  these,  uncontrollable 
by  any  contract  which  they  can  make.  When  formed,  this  rela- 
tion is  no  more  a  contract  than  'fatherhood'  or  'sonship'  is  a  con- 
tract." 

In  Wade  v.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250,  the  ques- 
tion came  before  the  court  of  appeals  of  New  York  wdiether  an 
action  for  breach  of  promise  of  marriage  was  an  action  upon  a 
contract  within  the  meaning  of  certain  provisions  of  the  Revised 
Statutes  of  that  state,  and  in  disposing  of  the  question  the  court 
said :  "The  general  statute,  'that  marriage,  so  far  as  its  validity  in 
law  is  concerned,  shall  continue  in  this  state  a  civil  contract,  to 
which  the  consent  of  parties,  capable  in  law  of  contracting,  shall 
be  essential,'  is  not  decisive  of  the  question.  2  Rev.  St.  138.  This 
statute  declares  it  a  civil  contract,  as  distinguished  from  a  religious 
sacrament,  and  makes  the  element  of  consent  necessary  to  its  legal 
validity,  but  its  nature,  attributes,  and  distinguishing  features  it 
does  not  interfere  with  or  attempt  to  define.  It  is  declared  a  civil 
contract  for  certain  purposes,  but  it  is  not  thereby  made  synony- 
mous with  the  word  'contract'  employed  in  the  common  law  or 
statutes.  In  this  state,  and  at  common  law,  it  may  be  entered  into 
by  persons  respectively  of  fourteen  and  twelve.  It  cannot  be  dis- 
solved by  the  parties  when  consummated,  nor  released  with  or 
without  consideration.  The  relation  is  always  regulated  by  gov- 
ernment. It  is  more  than  a  contract.  It  requires  certain  acts  of 
the  parties  to  constitute  marriage  independent  of  and  beyond  the 
contract.  It  partakes  more  of  the  character  of  an  institution  reg- 
ulated and  controlled  by  public  authority,  upon  principles  of  pub- 
lic policy,  for  the  benefit  of  the  community." 

In  Noel  V.  Ewing,  9  Ind.  37,  the  question  was  before  the  su- 
preme court  of  Indiana  as  to  the  competency  of  the  legislature  of 
the  state  to  change  the  relative  rights  of  husband  and  wife  after 
marriage,  which  led  to  a  consideration  of  the  nature  of  marriage; 
and  the  court  said:  "Some  confusion  has  arisen  from  confound- 
ing the  contract  to  marry  with  the  marriage  relation  itself.     And 


b  MARRIAGE 

Still  more  is  engendered  by  regarding  husband  and  wife  as  strictly 
parties  to  a  subsisting  contract.  At  common  law,  marriage  as  a 
status  had  few  elements  of  contract  about  it.  For  instance,  no 
other  contract  merged  the  legal  existence  of  the  parties  into  one. 
Other  distinctive  elements  will  readily  suggest  themselves,  which 
rob  it  of  most  of  its  characteristics  as  a  contract,  and  leave  it 
simply  as  a  status  or  institution.  As  such,  it  is  not  so  much  the 
result  of  private  agreement  as  of  public  ordination.  In  every  en- 
lightened government  it  is  pre-eminently  the  basis  of  civil  insti- 
tutions, and  thus  an  object  of  the  deepest  public  concern.  In  this 
light,  marriage  is  more  than  a  contract.  It  is  not  a  mere  matter 
of  pecuniary  consideration.  It  is  a  great  public  institution,  giving 
character  to  our  whole  civil  polity." 

In  accordance  with  these  views  was  the  judgment  of  Mr.  Jus- 
tice Story.  In  a  note  to  the  chapter  on  marriage  in  his  work  on 
the  Conflict  of  Laws,  after  stating  that  he  had  treated  marriage 
as  a  contract  in  the  common  sense  of  the  word,  because  this  was 
the  light  in  which  it  was  ordinarily  viewed  by  jurists,  domestic 
as  well  as  foreign,  he  adds:  "But  it  appears  to  me  to  be  something 
more  than  a  mere  contract.  It  is  rather  to  be  deemed  an  institu- 
tion of  society  founded  upon  consent  and  contract  of  the  parties, 
and  in  this  view  it  has  some  peculiarities  in  its  nature,  character, 
operation,  and  extent  of  obligation  different  from  what  belong  to 
ordinary  contracts."    Section  108n.     *     *     * 

Judgment  affirmed. 


y 


II.  Mutual  Consent  * 


UNIVERSITY  OF  MICHIGAN  v.  McGUCKIN. 


(Supreme  Court  of  Nebraska,  1901.    62  Neb.  489,  87  N.  W.  180,  57  L. 

R.  A.  917.) 

Action  by  Charles  E.  Bates  against  Anna  McGuckin,  adminis- 
tratrix of  Daniel  McGuckin,  and  others,  j'udgment  for  defend- 
ants, and  plaintiff"  brings  error.  The  University  of  Michigan  was 
thereafter  substituted  for  plaintiff. 

Albert,  C*  This  action  was  brought  by  Elizabeth  H.  Bates 
against  Daniel  L.  McGuckin  and  Anna  McGuckin  to  foreclose  a 
mortgage  executed  by  the  first-named  defendant  toThe  plaintiff. 
Anna  McGuckin  resisted  the  foreclosure,  on  the  ground  that  at 
the  time  of  the  execution  of  the  mortgage,  and  at  all  tinies  subse- 

8  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel,  (3d  Ed.)  §  5. 
*  Part  of  the  opinion  is  omitted. 


MUTUAL   CONSENT  I 

quent  thereto,  she  was  the  wife  of  her  codefendant,  and  that  the 
mortgaged  premises  was  their  family  homestead;  that  the  mort- 
gage, not  having  been  signed  and  acknowledged  by  her,  was  void. 
The  reply  was  a  general  denial.  A  trial  of  the  issues  joined  re- 
sulted in  a  finding  and  decree  in  favor  of  the  defendant,  to  reverse 
which  the  case  is  brought  to  this  court  on  appeal.  For  reasons 
not  necessary  to  state  in  detail,  the  case  is  now  prosecuted  under 
its  present  title. 

The  first  question  presented  is  whether  the  findings  of  the  trial 
court  are  sufficient  to  sustain  the  decree.  The  appellant  chal- 
lenges the  sufficiency  of  the  finding  on  two  grounds,  which  will 
be  considered  in  their  order.  It  is  first  urged  that  the  findings 
do  not  establish  a  marriage  between  Anna  McGuckin  and  her  co- 
defendant.    The  finding  on  this  point  is  as  follows : 

"(4)  The  court  further  finds  that  the  said  Anna  McGuckin  en- 
tered tlie  home  of  Daniel  L.  McGuckin  in  the  month  of  April,  1880, 
as  housekeeper  for  Daniel  L.  McGuckin.  That  she  was  then  the 
wife  of  James  Lavelle.  That  af  the  solicitation  and  expense  of 
Daniel  L.  McGuckin  she  commenced  an  action  for  divorce  against 
said  James  Lavelle  in  Burt  county,  Nebraska,  and  that  a  divorce 
was  granted  her  on  May  4,  1880,  in  the  district  court  of  Burt  coun- 
ty, Nebraska.  That  at  the  time  of  the  filing  of  her  petition  in  Burt 
county,  Nebraska,  she  was  living  in  Burt  county,  Nebraska,  and 
that  her  parents,  with  whom  she  had  made  her  home  since  sep- 
arating from  said  James  Lavelle,  were  residing  in  said  Burt  county, 
Nebraska. 

"(5)  That  in  April,  1880,  Daniel  L.  McGuckin  was  a  married 
man,  and  that  he  obtained  his  divorce  from  his  wife  in  August, 
1880,  and  that  said  Anna  McGuckin  did  not  know  of  the  fact  that 
Daniel  L.  McGuckin  was  married  until  May  4,  1880.  That  at  a 
time  prior  to  the  obtaining  of  her  divorce,  to  wit,  on  May  4,  1880, 
said  Daniel  L.  McGuckin  and  Anna  McGuckin  promised  to  marry 
as  soon  as  she  should  get  her  divorce,  and  that  they  commenced  co- 
habiting together  at  said  time,  and  continued  to  so  cohabit  until 
April,  1893.  That  the  said  Daniel  L.  McGuckin  again  promised 
to  marry  the  said  Anna  McGuckin  after  she  got  her  divorce,  and 
before  he  obtained  his  divorce,  and  promised  that  he  would  so 
marry  her  as  soon  as  he  could  procure  a  divorce  from  his  wife. 
That  pending  his  action  for  divorce  they  cohabited  as  husband 
and  wife,  and  held  each  other  out  to  the  world  as  husband  and 
wife,  and  that  no  marriage  ceremony  was  ever  performed,  and  that 
she  continued  to  live  with  and  cohabit  with  the  said  Daniel  L. 
McGuckin  until  the  spring  of  1893.  That  they  announced  them- 
selves as  husband  and  wife  to  her  relatives,  and  so  conducted  them- 
selves wherever  they  went.  That  he  introduced  her  as  his  wife 
in  society  and  in  the  church,  and  spoke  of  her  as  his  wife  in  stores 
where  they  traded,  addressed  her  as  'Mrs.  McGuckin'  in  the  pres- 


8  MARRIAGH 

ence  of  company,  paid  her  bills,  and  supported  her  as  his  wife. 
That  Daniel  L.  McGuckin  gave  her  an  engagement  ring  and  a 
wedding  ring.  That  she  gave  birth  to  five  children,  whose  pa- 
ternity Mr.  McGuckin  has  always  acknowledged,  and  which  were 
duly  baptized  in  the  Catholic  Church  as  children  of  legally  mar- 
ried parents.  Four  of  said  children  are  still  living.  That  the  prom- 
ises above  made  were  the  only  promises  ever  made,  and  that  no 
new  promise  was  made  after  the  obtaining  of  the  divorce  by  Dan- 
iel L.  A'IcGuckin,  nor  was  there  any  apparent  change  in  their 
manner  of  living  or  holding  themselves  out  as  husband  and  wife." 

In  our  opinion  the  foregoing  is  a  finding  of  a  marriage  between 
the  parties.  Marriage  in  this  state  is  purely  a  civil  contract,  and 
whenever  the  minds  of  parties  capable  of  entering  into  a  marriage 
contract  with  each  other  meet  in  a  common  consent  thereto  at  the 
same  time  there  is  a  valid  marriage.  Bailey  v.  State,  36  Neb.  808, 
55  N.  W.  241.  No  particular  form  of  words  is  required  to  ex- 
press such  common  consent.  The  announcement  of  the  parties 
to  her  relatives  that  they  (the  defendants)  were  husband  and  wife 
in  itself  shows  a  meeting  of  their  minds  at  the  same  time  in  com- 
mon consent  to  bear  that  relation  each  to  the  other.  That  the  re- 
lations between  the  parties,  before  divorced  from  their  respective 
spouses,  was  meretricious,  is  immaterial,  so  long  as  their  minds 
did  meet,  as  before  stated,  at  a  time  when  they  were  both  free  to 
enter  into  a  contract  of  marriage.  Poole  v.  People,  24  Colo.  510, 
52  Pac.  1025,  65  Am.  St.  Rep.  245 ;  State  v.  Zichfeld,  23  Nev.  304, 
46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep.  800.     *     *     * 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  the 
decree  of  the  district  court  is  affirmed. 

On  Rehearing. 

(Supreme  Court  of  Nebraska,  1902.    64  Neb.  300,  89  N.  W.  778.      57  L. 

R.  A.  917.) 

Ames,  C.  This  cause  is  resubmitted  upon  arguments  and  briefs 
upon  a  rehearing  granted  from  a  former  decision  in  the  same 
cause,  the  opinion  in  which  was  filed  on  the  10th  day  of  July,  1901. 
The  case  was  submitted,  upon  a  record  containing  the  pleadings 
and  findings  of  fact  of  the  trial  court,  only.  The  principal  ques- 
tion discussed  upon  the  reargument,  and  the  only  one  with  which 
we  think  it  requisite  to  deal  in  this  opinion,  is  that  of  the  validity 
of  the  alleged  marriage  between  the  appellees  Anna  McGuckin  and 
Daniel  McGuckin.  The  findings  of  fact  relative  to  this  inquiry 
are  copied  in  the  former  opinion,  and  need  not  be  repeated  here. 
The  district  court  found,  as  a  conclusion  of  law,  that  they  were 
sufficient  to  establish  the  validity  of  the  marriage.  In  this  con- 
clusion this  court,  in  its  former  opinion,  concurred. 

The  facts  found  are  many  of  them  evidential,  rather  than  ulti- 


MUTUAL   CONSENT 


9 


mate,  in  character.  The  beginning  of  the  cohabitation  was  mere- 
tricious, each  of  the  parties  having  a  lawful  spouse  then  living; 
but  both  these  obstacles  were  soon  afterwards  removed  by  decrees 
of  divorce,  and  thereafter  the  parties  not  only  continued  for  a  long 
term  of  years  to  live  together  as  husband  and  wife,  and  to  enjoy 
the  repute  of  that  relation,  but  continuously  represented  them- 
selves to  the  public  and  individuals  as  being  such.  During  this 
time,  and  before  the  making  of  the  mortgage  in  question,  five 
children  were  born  of  the  union,  whom  their  parents  unitedly 
represented  to  the  public,  and  caused  to  be  baptized  into  church, 
as  the  children  of  lawful  wedlock.  That  these  facts  and  certain 
others  recited  in  the  finding  would,  if  standing  alone,  be  sufficient 
evidence  of  marriage,  cannot  be  doubted,  and  is  explicitly  ad- 
mitted by  counsel  for  the  appellant  in  both  brief  and  argument. 
But  in  connection  with  them,  and  as  a  part  of  the  same  finding 
in  which  they  are  set  forth,  the  court  also  found  that,  although 
the  parties  made  promises  to  marry  prior  to  the  obtaining  of  the 
divorces,  yet  that  such  promises  "were  the  only  promises  ever 
made,  and  that  no  new  promise  was  made  after  obtaining  of  the 
decree  of  divorce  by  Daniel  McGuckin,  nor  was  there  any  appar- 
ent change  in  their  manner  of  living,  or  holding  themselves  out  as 
husband  and  wife." 

Counsel  thereupon  insists  that  a  lawful  marriage  could  have  had 
its  inception  only  in  a  promise  or  agreement  of  marriage  after 
the  removal  of  the  legal  obstacles  thereto;  that  the  evidential  facts 
found  are  of  no  significance,  except  as  tending  to  establish  the 
making  of  such  a  promise  or  agreement,  or  of  raising  a  pre- 
sumption that  one  had  been  made,  and  that  whether  one  had  been 
made  was  the  only  ultimate  fact  in  controversy;  and  that  the 
language  quoted  above  from  the  finding,  being  an  express  ne- 
gation of  such  promise,  is  decisive  of  the  case,  so  that  the  eviden- 
tial facts  found  are  immaterial.  In  other  words,  it  is  contended, 
as  we  understand  counsel,  that  a  single  finding  by  the  court  that 
there  was  no  promise  or  agreement  after  obtaining  of  the  divorces 
would  have  had  the  precise  legal  weight  of  the  actual  finding,  and 
that  it  is  not  a  material  inquiry  whether  the  court  recited  all  or 
only  part  of  the  evidence  establishing  this  ultimate  fact,  because 
it  was  not  obligatory  upon  him  to  recite  any  of  it.  We  can  hardly 
believe  that  this  is  the  interpretation  which  the  trial  judge  him- 
self put  upon  his  findings,  and  we  are  not  convinced  that  it  is 
the  true  one  to  be  given  to  that  document.  In  our  opinion,  an 
express  verbal  promise  or  agreement  of  marriage  is  not  in  all 
cases  indispensable  under  our  law.  The  statute  enacts  (section  1, 
c.  52,  Comp.  St.),  "In  law,  marriage  is  considered  a  civil  contract 
to  which  the  consent  of  the  parties  capable  of  contracting  is  es- 
sential." 


10  '  MARRIAGE 

The  main  purpose  of  this  definition  is,  we  think,  to  negative  the 
idea~that  marriage  is  an  ecclesiastical  sacrament,  or  that  in  the 
eye  of  the  law  it  is  controlled  by  the  mandates  or  dogmas,  or 
subject  to  the  observance  of  the  rituals  or  regulations,  of  any 
particular  churches  or  sects.  That  it  is  not  a  contract  resembling 
in  any  but  the  slightest  degree,  except  as  to  the  element  of  con- 
sent, any  other  contract  with  which  the  courts  have  to  deal,  is 
apparent  upon  a  moment's  reflection.  This  was  pointed  out  by 
the  late  Mr.  Justice  Field,  with  his  usual  clearness  of  expression 
and  wealth  of  illustration,  in  Maynard  v.  Hill,  125  U.  S.  190,  8 
Sup.  Ct.  723,  31  L.  Ed.  654.  What  persons  establish  by  entering 
into  matrimony  is  not  a  contractual  relation,  but  a  social  status ; 
and  the  only  essential  features  of  the  transactions  are  that  the 
participants  are  of  legal  capacity  to  assume  that  status,  and  freely 
consent  so  to  do.  It  may  be  true,  as  counsel  for  appellant  con- 
tends, that  the  indispensable  consent  cannot  be  implied,  but  must 
in  all  cases  be  expressed ;  but  it  does  not  follow  that  it  must  be 
expressed  in  any  especial  manner,  or  by  any  prescribed  form  of 
words.  The  statute  above  cited  dispenses  with  all  ceremonials — 
verbal  as  well  as  other.  It  was  probably  this  idea  which  was  in 
the  mind  of  the  trial  judge  when  he  penned  the  words  quoted 
above  from  his  finding.  In  other  words,  it  appeared  to  him,  as  it 
appears  to  us,  that  there  was  sufficient  evidence  that  after  the 
obtaining  of  the  last  divorce  the  parties  consented  to  assume  the 
status  of  husband  and  wife,  although  they  made  no  explicit  verbal 
contract  or  agreement  so  to  do.  Doubtless  the  very  phrase  which 
counsel  for  appellant  regards  as  establishing  the  ultimate,  conclu- 
sive, and  solely  essential  fact,  the  trial  judge  looked  upon  as 
slightly,  if  at  all,  material.  So  construed,  his  finding  is  inconsistent 
neither  with  itself,  nor  with  the  conclusion  of  law  and  judgment, 
and  that  this  is  its  true  interpretation  is  to  our  minds  perfectly 
clear. 

As  has  already  been  said,  it  is  conceded,  and,  indeed,  it  could 
not  well  be  disputed,  that  there  is  in  the  finding,  aside  from  this 
single  expression,  sufficient  evidence  of  the  consent  of  the  par- 
ties, after  the  removal  of  their  disabilities,  to  assume  the  marriage 
relation.  That  evidence  is  not  rebutted  by  the  mere  negative  fact 
that  they  omitted  to  express  that  consent  by  formal  words.  The 
ultimate  fact  is  not  that  the  parties  made  a  formal  promise  or  con- 
tract, but  that  they  mutually  consented  to  a  social  relation.  This 
consent  may  be  expressed  by  conduct  as  efi'ectively  as  by  words, 
and  proof  of  the  conduct  is  proof  of  the  consent.  In  both  cases 
the  conclusion  drawn  by  the  court  is  from  an  implication,  but  in 
either  case  all  that  is  required  is  that  the  expression  be  clear  and 
unambiguous.  In  neither  case  can  it  properly  be  said  that  the 
contract  or  the  consent  is  implied. 


REALITY    OF   CONSENT  11 

It  is  recommended  that  the  former  decision  of  this  court  be 
adhered  to,  and  the  judgment  of  the  district  court  affirmed. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  it 
is  ordered  that  the  former  decision  of  this  court  be  adhered  to,  and 
the  judgment  of  the  district  court  affirmed. 


III.  Reality  of  Consent' 
1.  Fraud. 


LYON  V.  LYON. 

(Supreme  Court  of  Illinois,  1907.     230  111.  366,  82  N.  E.  850,  13  L.  R.  A- 

[N.  S.]  996.) 

Action  by  James  A.  Lyon  against  Susanne  B.  ivyon  for  the 
annulment  of  marriage,  on  the  ground  of  fraud.  The  plaintiff  al- 
leged in  his  bill  that  the  defendant  for  some  years  prior  to  the 
marriage  had  been  subject  to  attacks  of  epilepsy;  that  to  induce 
him  to  enter  into  the  marriage  she  had  falsely  and  fraudulently 
represented  to  him  that  she  had  been  entirely  cured  of  the  disease 
and  had  had  no  attacks  for  eight  years;  that,  relying  on  the 
truth  of  such  representations,  he  married  her  on  June  15,  1904,  at 
Richford,  N.  Y. ;  that  in  April,  1905,  he  first  learned  of  the  falsity 
of  the  representations;  and  that  in  fact  she  had  been  subject  to 
fits  of  epilepsy  at  frequent,  but  irregular,  intervals  for  ten  years  im- 
mediately prior  to  the  marriage.  It  was  also  alleged  that  the  stat- 
utes of  New  York  in  force  at  the  time  of  the  marriage  and  now 
provide  that  in  case  the  consent  of  one  of  the  parties  to  a  marriage 
is  obtained  by  fraud  such  marriage  may  be  annulled.  On  demurr- 
er the  bill  was  dismissed  for  want  of  equity.  The  decree  was 
affirmed  by  the  Appellate  Court  for  the  First  District,  and  plain- 
tiff appeals.® 

Dunn,  J.  Appellant's  claim  is  that  the  rights  of  the  parties  are 
to  be  determined  by  the  law  of  New  York,  where  the  marriage  was 
contracted,  and  that  by  such  law  this  marriage  was  subject  to  be 
annulled  for  fraud.  Fraud  in  the  state  of  New  York  is  not  differ- 
ent, we  presume,  from  fraud  elsewhere.  If  the  bill  does  not  charge 
conduct  which  we  would  hold  fraudulent,  we  cannot  assume  that 
the  courts  of  another  state  would  do  so.    The  bill  alleges  that  the 

6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom,  ReL  (3d  Ed.)  §§ 
6-10. 

•  The  statement  of  facts  is  rewritten. 


12  MARRIAGE  ^ 

statutes  of  New  York  provide  that  the  marriage  may  be  annulled 
if  .appellant's  consent  was  obtained  by  fraud.  Our  inquiry  is, 
therefore,  whether  the  bill  shows  that  appellant's  consent  was 
obtained  by  fraud,  and  the  allegation  will  be  construed  according 
to  the  law  of  Illinois. 

It  is  not  alleged  that  any  different  definition  of  fraud  has  been 
established  by  statute  or  prevails  in  New  York,  or  that  the  stat- 
ute declares  that  a  marriage  may  be  annulled  for  a  misrepresen- 
tation in  regard  to  the  health  of  one  of  the  parties.  The  fraud 
charged  is  that  the  appellee  falsely  represented  that  she  was  en- 
tirely cured  of  her  epilepsy  and  had  no  attack  of  it  in  eight  years. 
So  far  as  her  being  entirely  cured  was  concerned,  that  was  essen- 
tially a  matter  of  judgment  and  opinion.  The  false  representa- 
tion of  fact  was  that  she  had  had  no  attack  of  the  disease  for 
eight  years. 

"As  to  fraud,  in  order  to  vitiate  a  marriage,  it  should  go  to  the 
very  essence  of  the  contract.  *  *  *  Fraudulent  misrepresen- 
tations of  one  party  as  to  birth,  social  position,  fortune,  good 
health,  and  temperament  cannot,  therefore,  vitiate  the  contract. 
Caveat  emptor  is  the  harsh,  but  necessary,  maxim  of  the  law." 
Schouler  on  Domestic  Relations,  par.  23. 

"In  that  contract  of  marriage  which  forms  the  gateway  to  the 
status  of  marriage,  the  parties  take  each  other  for  better,  for  worse, 
for  richer,  for  poorer,  to  cherish  each  other  in  sickness  and  in 
health;  consequently  a  mistake,  whether  resulting  from  accident, 
or,  indeed,  generally,  from  fraudulent  practices  in  respect  to  the 
character,  fortune,  health,  does  not  render  void  what  is  done. 
To  this  conclusion  the  authorities  all  conduct  us,  but  dififerent* 
modes  of  stating  the  reason  for  it  have  been  adopted.  Thus,  the 
qualities  just  mentioned  are  said  to  be  accidental,  not  going  to 
the  essentials  of  the  relation;  and  Lord  Stowell,  after  remarking 
that  error  about  the  family  or  fortune  of  an  individual,  though 
produced  by  disingenuous  representations,  does  not  affect  the  va- 
lidity of  the  marriage,  adds :  'A  man  who  means  to  act  upon  such 
representations  should  verify  them  by  his  own  inquiry.  The  law 
presumes  that  he  used  due  caution  in  a  matter  in  which  his  hap- 
piness for  life  is  so  materially  involved,  and  it  makes  no  provision 
for  relief  of  a  blind  credulity,  however  it  may  have  been  pro- 
duced.' "    1  Bishop  on  Marriage  and  Divorce,  par.  167. 

"It  is  well  understood  that  error,  and  even  disingenuous  repre- 
sentations, in  respect  to  the  qualities  of  one  of  the  contracting 
parties,  as  to  his  condition,  rank,  fortune,  manners,  and  character, 
would  be  insufficient.  The  law  makes  no  provision  for  the  relief 
of  a  blind  credulity,  however  it  may  have  been  produced."  2 
Kent's  Commentaries,  IT . 

"The  degree  of  fraud  sufficient  to  vitiate  an  ordinary  contract 
will  not  afford  sufficient  ground  for  the  annulment  of  a  marriage. 


REALITY   OF   CONSENT  13 

It  is  not  sufficient  that  the  party  relied  upon  the  false  represen- 
tations and  was  deceived,  or  that  important  and  essential  facts 
were  concealed  with  intent  to  deceive.  The  marriage  relation 
is  a  status  controlled  and  regulated  by  considerations  of  public 
policy,  which  are  paramount  to  the  rights  of  the  parties.  *  *  * 
The  fortune,  character,  and  social  standing  of  one  of  the  parties 
are  not  essential  elements  of  marriage,  and  it  is  contrary  to  pub- 
lic policy  to  annul  marriages  for  fraud  or  misrepresentation  as 
to  such  personal  qualities."  19  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.) 
1184. 

Concealment  of  the  fact  that  the  woman  had  previously  been 
insane^has  been  held  insufficient  to  justify  a  decree  of  nullity  of 
marriage.  Cummington  v.  Belchertown,  149  Mass.  223,  21  N.  E. 
435,  4  L.  R.  A.  131.  So  has  concealment  of  kleptomania.  Lewis 
v.  Lewis,  44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St. 
Rep.  559.  Also  concealment  by  a  woman  of  unchastity  prior  to 
marriage.  Leavitt  v.  Leavitt,  13  IMich.  452;  Allen's  Appeal,  99 
Pa.  196,  44  Am.  Rep.  101 ;  Varney  v.  Varney,  52  Wis.  120,  8  N.  W. 
739,  38  Am.  Rep.  726.  Also  concealment  of  a  prior  marriage. 
Donnelly  v.  Strong,  175  Mass.  157,  55  N.  E.  892;  Fisk  v.  Fisk,  6 
App.  Div.  432,  39  N.  Y.  Supp.  537.  Also  concealment  of  the  birth 
of  an  illegitimate  child  prior  to  marriage.  Farr  v.  Farr,  2  Mac- 
Arthur  (D.  C.)  35;  Smith  v.  Smith,  8  Or.  100.  The  fraudulent 
representations  for  which  a  marriage  may  be  annulled  must  be  of 
something  essential  to  the  marriage  relation — of  something  mak- 
ing impossible  the  performance  of  the  duties  and  obligations  of  that 
relation,  or  rendering  its  assumption  and  continuance  dangerous 
to  health  or  life.  Smith  v.  Smith,  171  Mass.  404,  50  N.  E.  933, 
41  L.  R.  A.  800,  68  Am.  St.  Rep.  440;  Ryder  v.  Ryder,  66  Vt.  158, 
28  Atl.  1029,  44  Am.  St.  Rep.  833 ;  Cummington  v.  Belchertown, 
supra. 

The  case  of  Gould  v.  Gould,  78  Conn.  242,  61  Atl.  604,  2  L.  R.  A. 
(N.  S.)  531,  is  not  inconsistent  with  these  rules,  though  it  was 
there  held  that  concealment  of  epilepsy  was  such  a  fraud  as  would 
justify  a  decree  of  divorce  under  the  statute  of  that  state  forbid- 
ding marriage  or  sexual  intercourse  by  or  with  an  epileptic  under 
penalty  of  imprisonment.  The  court  said  that  a  fraud  was  ac- 
complished "whenever  a  person  enters  into  that  [marriage]  con- 
tract knowing  that  he  is  incapable  of  sexual  intercourse,  and  yet, 
in  order  to  induce  that  marriage,  designedly  and  deceitfully  con- 
cealing that  fact  from  the  other  party,  who  is  ignorant  of  it  and 
has  no  reason  to  suppose  it  to  exist.  Whether  such  incapacity 
proceeds  from  a  physical  or  a  merely  legal  cause  is  immaterial. 
The  prohibition  of  the  act  of  1895  fastened  upon  the  defendant 
an  incapacity  which,  if  unknown  to  the  plaintiff  and  by  him  fraud- 
ulently concealed  from  her  with  the  purpose  thereby  to  induce 
a  marriage,  made  his  contract  of  marriage,  in  the  eye  of  the  law, 


14  MARRIAGE 

fraudulent.  *  *  *  The  superior  court  has  power  to  pass  a  de- 
cree of  divorce  from  the  bonds  of  matrimony  in  favor  of  a  party 
to  a  marriage  not  an  epileptic,  who  has  been  tricked  into  it  by 
the  other  party,  who  was  an  epileptic,  through  his  fraud  in  induc- 
ing a  belief  that  he  was  legally  and  physically  competent  to  enter 
into  the  marital  relation  and  fulfill  all  its  duties,  when  he  knew 
that  he  was  not." 

The  Supreme  Court  of  New  York,  in  Di  Lorenzo  v.  Di  Lorenzo, 
174  N.  Y.  467,  67  N.  E.  63,  63  L.  R.  A.  92,  95  Am.  St.  Rep.  609, 
held  that  the  representation  by  a  woman  to  a  man  that  she  had 
given  birth  to  a  child  of  which  he  was  the  father  and  which  she 
purported  to  exhibit  to  him,  when  in  fact  she  had  not  given  birth 
to  a  child,  was  such  fraud  as  to  justify  the  annulling  of  a  marriage 
brought  about  thereby.  This  representation  is  similar  in  kind  to 
that  of  a  pregnant  woman,  who  induces  a  man  with  whom  she 
has  had  illicit  intercourse  to  marry  her  by  the  false  representation 
that  he  is  the  father  of  her  child.  But  such  representation,  under 
such  circumstances,  does  not  constitute  fraud  for  which  the  mar- 
riage will  be  annulled,  and  we  regard  the  decision  in  the  Di  Lo- 
renzo Case  as  opposed  to  the  weight  of  authority.  Franke  v. 
Franke,  96  Cal.  xvii,  31  Pac.  571,  18  L.  R.  A.  375 ;' Foss  v.  Foss, 
12  Allen  (Mass.)  26;  Crehore  v.  Crehore,  97  Mass.  330,  93  Am. 
Dec.  98. 

The  statute  of  New  York  mentioned  in  the  bill  merely  declares 
thela^w  as  it  exists  in  Illinois — that  a  marriage  procured  by  fraud 
may  be  annulled.  The  kind  and  degree  of  evidence  required  for 
such  purpose  must  be  determined  by  the  court  in  which  the  suit 
is  brought,  according  to  the  law  of  the  forum.  The  bill  proceeds 
on  the  theory  that  the  appellant's  consent  to  the  marriage  was 
obtained  by  fraud,  and  sets  out  the  facts  constituting  the  fraud. 
Whether  those  facts  constitute  fraud  must  be  determined  by  the 
laiv  of  the  forum,  and  the  superior  court  did  not  err  in  sustaining 
the  demurrer  to  the  bill.  Its  decree,  and  the  judgment  of  the  Ap- 
pellate Court  in  affirmance  thereof,  will  be  affirmed. 

Judgment  affirmed.'^ 

7  Compare  Gould  v.  Gould,  78  Conn.  242,  61  Atl.  604,  2  L.  R,  A.  (N.  S.)  531 
(1905).     See,  also,  Lewis  v.  Lewis,  post,  p.  17. 


beality  of  consent  15 

2.  Duress 


SHORO  V.  SHORO. 
(Supreme  Court  of  Vermont,  1888.    60  Vt  268,  14  AU.  177,  6  Am.  St.  Rep.  118.) 

Petition  to  annul  a  marriage  contract  under  section  2349  of  the 
RevIiedrXaws.  Trial  by  court  at  September  term,  Rutland  county 
court,  1887,  Rowell,  J.,  presiding.  Petition  dismissed  as  a  matter 
of  law.  Section  2349,  Rev.  Laws,  iFas  follows:  "The  marriage 
contract  may  be  annulled  when  *  *  *  the  consent  of  either 
party  was  obtained  by  force  or  fraud."  The  exceptions  stated 
that  "the  petitioner  had  the  alternative  of  going  to  jail  or  of 
marrying  the  petitionee."  The  other  facts  are  sufficiently  stated 
in  the  opinion. 

Ross,  J.  This  is  a  petition  to  have  the  marriage  solemnized  be- 
between  the  parties  annulled,  alleging,  among  other  things  that 
the  petitioner's  consent  was  obtained  by  force  and  fraud.  It  comes 
to  this  court  on  the  facts  found  by  the  county  court,  and  the  ex- 
ceptions of  the  petitioner  to  the  refusal  of  the  county  court  to  an- 
nul the  marriage.  We  have  given  the  matter  somewhat  careful 
attention,  both  because  the  marriage  contract  is  one  in  which 
the  public  generally  is  interested,  and  because  no  attorney  has 
appeared  for  the  petitionee. 

The  controlling  facts  found  by  the  county  court  are  that  the 
petitioner,  a  lad  16  years  old,  never  had  sexual  intercourse  with 
the  petitionee  before  or  after  the  performance  of  the  marriage 
ceremony,  and  never  cohabited  nor  lived  with  her.  She  was  older, 
of  bad  repute  for  chastity,  and,  without  probable  cause,  mali- 
ciously caused  him  to  be  arrested  upon  bastardy  proceedings.  He 
was  greatly  frightened  by  the  arrest,  protested  his  innocence,  but 
was  told  by  the  officer  he  must  get  bail  or  go  to  jail.  He  applied 
to  his  father  to  bail  him,  and  was  refused.  The  father  told  him 
to  marry  her  or  go  to  jail,  and  advised  him  to  marry  her,  and  not 
live  with  her.  When  protesting  his  innocence  to  the  officer,  the 
officer  assured  him  that  would  not  save  him.  He_took  liis^fa.therjs 
advice,  went  through  the  marriage  ceremony  performed  by  the 
magistrate  who  signed  the  warrant  for  his  arrest,  while  under  ar- 
rest, in  the  presence  of  the  officer,  and  while  greatly  frightened, 
with  the  fixed  intention  of  never  living  with  her,  which  he  has 
fully  carried  out. 

Can  there  be  a  doubt  that  the  marriage  ceremony  was  pro- 
cured by  duress?  What  is  duress?  Says  Mr.  Bishop  (1  Mar.  & 
Div.  §  210)  :  "Where  a  consent  in  form  is  brought  about  by  force, 
menace,  or  duress — a  yielding  of  the  lips,  but  not  of  the  mind — it 
is  of  no  legal  effect."     Bac.  Abr.  under  the  title  "Duress":    "If  a 


16  MARRIAGH 

man  takes  A.  S.  to  wife  by  duress,  although  the  marriage  be  sol- 
emnized in  facie  ecclesise,  yet  it  is  merely  void,  and  they  are  not 
husband  and  wife,  for  without  free  consent  there  can  be  no  mar- 
riage." Again  he  says:  "It  seems  clearly  agreed  that  where  a 
person  is  illegally  restrained  of  his  liberty,  by  being  confined  in 
the  common  jail,  or  elsewhere,  and  during  such  restraint  enters 
into  a  bond  or  other  security,  to  the  person  who  causes  the  re- 
straint, he  may  avoid  the  same  for  duress  or  imprisonment."  Mr. 
Bishop,  in  section  213,  gives  a  case  agreeing  in  its  facts  with  the 
facts  found  by  the  county  court  in  the  case  at  bar,  except  the  ar- 
rest was  made  without  warrant,  in  which  the  marriage  was  annul- 
led for  duress.  He  intimates  that,  if  the  arrest  was  on  a  legal  pro- 
cess, it  would  be  otherwise.  No  doubt  that  would  be  true  if  by  "le- 
gal process"  he  means  is  "issued  for  legal  cause," 

But,  as  to  the  petitioner,  the  process  on  which  she  caused  his 
arrest  was  a  pretense — a  fiction — because  procured  maliciously, 
and  without  probable  cause.  If  anything,  it  was  worse  than  an 
arrest  without  process,  but  claiming  to  have  one.  Mr.  Bishop 
(section  212)  says:  "A  doubt  may  be  entertained  whether  a  pro- 
cess would  not  be  void,  if  shown  to  be  both  malicious  and  with- 
out probable  cause."  But  illegal  pretense,  as  it  was,  so  far  as  re- 
gards the  petitioner,  it  accomplished  her  wicked  and  unlawful  pur- 
pose— frightened  the  boy  and  caused  him  to  consent  to  the  per- 
formance of  the  marriage  ceremony  in  form  only — a  yielding  of  his 
lips,  but  not  of  his  mind. 

Sartwell  v.  Horton,  28  Vt.  370,  and  Hoyt  v.  Dewey,  50  Vt.  465, 
are  full  authority  that  money  procured  by  a  threatened  arrest,  on 
a  charge  which  the  maker  knows  to  be  false  and  without  founda- 
tion in  fact,  may  be  recovered  back.  In  Sartwell  v.  Horton 
the  case  of  Duke  of  Cadaval  v.  Collins,  4  Adol.  &  E.  858,  is  cited 
with  approval.  The  case  and  decision  is  stated  as  follows:  "That 
was  an  action  to  recover  money  paid  to  the  defendant  after  the 
plaintiff  had  been  served  with  process.  The  fact  was  found  by 
the  jury  that  the  defendant  knew  that  he  had  no  claim  upon  the 
plaintiff  when  he  sued  out  his  writ.  Coleridge,  J.,  observed  that 
'no  case  has  decided  that  when  a  fraudulent  use  has  been  made 
of  legal  process,  both  parties  knowing  throughout  that  the  rnoney 
claimed  was  not  due,  the  party  paying  under  such  process  is  not 
to  have  the  assistance  of  the  law.'  Patteson,  J.,  observed  that  'the 
jury  concluded  that  the  defendant  knew  that  the  debt  did  not  exist, 
and  that  he  used  the  process  colorably.  To  say  that  money  ob- 
tained by  such  extortion  cannot  be  recovered  back  would  be  mon- 
strous.' " 

My^ch  more  monstrous,  in  our  judgment,  would  it  be  to  hold 
that  a  boy  only  16  years  old,  whose  verbal  consent  to  a  marriage 
ceremony  had  been  extorted  by  the  use  of  a  process  known  to 
be  without  probable  cause,  and  used  maliciously,  instigated  and 


MENTAL   CAPACITY   OF   THE    PARTIES — INSANITY  17 

set  on  foot  by  an  unchaste,  pregnant  woman  of  mature  age,  can- 
not be  relieved  from  the  life-long-  bondage  of  such  a  wife.  The 
judgment  of  the  county  court  is  reversed,  and  the  pretended  mar- 
riage annulled  and  vacated. 


IV.  Mental   Capacity   of   the   Parties — Insanity  • 


LEWIS  v.  LEWIS. 

(Supreme  Court  of  Minnesota,  1S90.    44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A. 

505,  20  Am.  St.  Rep.  559.) 

Vanderburgh,  J.  The  statute  in  relation  to  divorces  (Gen.  St. 
c.  62,  §  2)  provides  that  "when  either  of  the  parties  *  *  *  for 
want  of  age  or  understanding  is  incapable  of  assenting  thereto, 
'^  *  *  the  marriage  shall  be  void  from  the  time  its  nullity  is 
declared  by  a  court  of  competent  authority."  Certain  limitations 
are  imposed  by  sections  4  and  5,  as  follows:  "Nor  shall  the  mar- 
riage of  any  insane  person  be  adjudged  void  after  his  restoration 
to  reason,  if  it  appears  that  the  parties  freely  cohabited  together 
as  husband  and  wife  after  such  insane  person  was  restored  to  a 
sound  mind.  Section  5.  No  marriage  shall  be  adjudged  a  nullity 
at  the  suit  of  the  party  capable  of  contracting,  on  the  ground 
that  the  other  party  was  *  *  *  insane,  if  such  *  *  *  in- 
sanity was  known  to  the  party  capable  of  contracting  at  the  time 
of  such  marriage." 

There  are  no  other  provisions  on  the  subject  of  insanity,  and  no 
form  of  insanity  or  insane  delusion  is  included  in  the  list  of  causes 
for  divorce;  and  insanity  arising  subsequent  to  the  marriage 
affords  no  ground  for  divorce.  The  section  first  quoted  is  simply 
declaratory  of  the  common  law.  There  must  have  been,  at  the 
time  of  the  marriage,  such  want  of  understanding  as  to  render 
the  party  incapable  of  assenting  to  the  contract  of  marriage. 

The  plaintiff  applies  for  a  decree  of  nullity  on  the  ground  of  his 
wife's  insanity  at  the  time  of  his  marriage,  of  which  he  claims 
fo~have  then  had  no  knowledge.  The  particular  form  of  insanity 
alleged  was  a  morbid  propensity  on  the  part  of  the  wife  to  steal, 
commonly  denominated  "kleptomania."  It  was  not  proved,  nor 
is  it  found  by  the  court,  that  she  was  not  otherwise  sane,  or  that 
her  mind  was  so  affected  by  this  peculiar  propensity  as  to  be  in- 
capable of  understanding  or  assenting  to  the  marriage  contract. 
Whether  the  subjection  of  the  will  to  some  vice  or  uncontrollable 

«  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §  12. 
COOLEY  P.&  D.Rel.— 2 


18  MARRIAGE 

impulse,  appetite,  passion,  or  propensity  be  attributed  to  disease, 
and  be  considered  a  species  of  insanity  or  not,  yet,  as  long  as 
the  understanding  and  reason  remain  so  far  unaffected  and  un- 
clouded that  the  afflicted  person  is  cognizant  of  the  nature  and 
obligations  of  a  contract  entered  into  by  him  or  her  with  another, 
the  case  is  not  one  authorizing  a  decree   avoiding  the  contract. 

Any  other  rule  would  open  the  door  to  great  abuses.  Anon.  4 
Pick.  (Mass.)  32;  St.  George  v.  Biddeford,  7(i  Me.  593;  Durham  v. 
Durham,  10  Prob.  Div.  80.  For  a  discussion  upon  the  character- 
istics of  the  peculiar  infirmity  to  which  the  defendant  here  is 
alleged  to  be  subject,  see  1  Whart.  &  S.  Med.  Jur.  (4th  Ed.)  §§ 
591,  595.  The  cases  are  numerous  in  which  contracts  and  wills 
have  been  upheld  by  the  courts,  though  the  party  executing  the 
same  is  subject  to  some  peculiar  form  of  insanity,  so  called,  or 
is  laboring  under  certain  insane  delusions.  In  re  Blakely's  Will, 
48  Wis.  294,  4  N.  W.  ZZ7 \  Jenkins  v.  Morris,  14  Ch.  Div.  674;  11 
Amer.  &  Eng.  Enc.  Law,  111,  and  cases. 

2.  The  defendant  is  found  to  have  been  subject  to  this  infirmity 
at  the  time  of  her  marriage  with  plaintiff,  in  1882,  but  it  was  con- 
cealed and  kept  secret  from  the  plaintiff  by  her  and  her  relatives, 
and  was  not  discovered  by  him  until  1888.  As  before  suggested, 
if  it  had  developed  after  the  marriage,  the  plaintiff  would  not  have 
been  entitled  to  judicial  relief,  though  the  consequences  might 
have  been  equally  serious  to  him.  But  the  plaintiff  contends  that 
such  concealment  constituted  a  case  of  fraud,  such  that  the  court 
should  declare  the  contract  of  marriage  void  on  that  ground. 

Where  one  is  induced,  by  deception  or  stratagem,  to  marry  a 
person  who  is  under  legal  disability,  physical  or  mental,  the  fraud 
is  an  additional  reason  why  the  unlawful  contract  should  be  an- 
nulled. And  so  deception  as  to  the  identity  of  a  person,  artful 
practices  and  devices,  used  to  entrap  young,  inexperienced,  or 
feeble-minded  persons  into  the  marriage  contract,  especially  when 
employed  or  resorted  to  by  those  occupying  confidential  relations 
to  them,  and  where  the  contract  is  not  subsequently  ratified,  are 
proper  cases  for  the  consideration  of  the  court.  But,  generally 
speaking,  concealment  or  deception  by  one  of  the  parties  in  re- 
spect to  traits  or  defects  of  character,  habits,  temper,  reputation, 
bodily  health,  and  the  like,  is  not  sufficient  ground  for  avoiding  a 
marriage.  The  parties  must  take  the  burden  of  informing  them- 
selves, by  acquaintance  and  satisfactory  inquiry,  before  entering 
into  a  contract  of  the  first  importance  to  themselves  and  to  so- 
ciety in  general.  Reynolds  v.  Reynolds,  3  Allen  (Mass.)  607, 
608;  lycavitt  v.  Leavitt,  13  Mich.  456;  1  Cooley,  Bl.  439,  and  notes. 

The  facts  found  do  not  present  a  case  warranting  the  relief 
asked.     Judgment  affirmed. 


MENTAL  CAPACITr   OF  THE   PARTIES — NONAQB  19 


V.  Same — Nonage* 


ELIOT  V.  ELIOT. 

(Supreme  Court  of  Wisconsin,  1890.     77  Wis.  634,  46  N.  W.  806,  10  L. 

R.  A.  568.) 

Action  for  annulment  of  marriage  on  the  ground  of  the  nonage 
of  the  plaintiff.  The  parties  were  married  January  5,  1890.  The 
plaintiff  was  15  years  old  February  23,  1889,  and  was  not  yet  18 
years  old  when  the  action  was  begun.  A  demurrer  to  the  com- 
plaint being  overruled,  defendant  appeals. 
^  Lyon,  J.^"  *  *  *  It  is  claimed  that,  if  the  parties  volunta- 
rily cohabited  after  the  marriage,  no  action  can  be  maintained 
under  section  2350,  Rev.  St.  1878,  for  the  annulment  of  the  mar- 
riage, and  that  the  amended  complaint  shows  such  cohabitation. 
Although  the  learned  counsel  for  the  respective  parties  agree  that 
the  complaint  may  be  considered  as  containing  an  averment  of 
voluntary  cohabitation  after  marriage,  the  fact  is  there  is  no  such 
averment  therein.  It  is  only  stated  that  after  the  marriage  the 
parties  "had  or  attempted  to  have  sexual  intercourse."  This  falls 
far  short  of  an  averment  that  they  had  such  intercourse.  In  de- 
termining the  validity  of  a  pleading  we  must  take  it  as  it  is,  not- 
withstanding counsel  agree  that,  for  the  purposes  of  the  argument 
and  decision,  it  may  be  treated  as  something  which  it  is  not. 
Hence,  we  cannot  regard  the  amended  complaint  as  containing 
an  allegation  of  such  voluntary  cohabitation.  But  if  the  con- 
struction of  section  2350  for  which  counsel  for  defendant  contends 
be  adopted,  we  are  willing  to  assume,  for  the  purposes  of  this 
appeal,  that  the  complaint  should  negative  such  cohabitation.  This 
not  being  done,  if  defendant's  construction  of  the  statute  prevails, 
the  complaint  would  (on  the  above  assumption)  be  equally  as 
defective  as  though  it  expressly  admitted  such  cohabitation. 

This  view  renders  a  construction  of  the  statute  necessary.  Sec- 
tion 2350  reads  as  follows :  "When  either  of  the  parties  to  a  mar- 
riage, for  want  of  age  or  understanding,  shall  be  incapable  of  as- 
senting thereto,  or  when  the  consent  of  either  party  shall  have 
been  obtained  by  force  or  fraud,  and  there  shall  have  been  no  sub- 
sequent voluntary  cohabitation  of  the  parties,  the  marriage  shall 
be  void  from  such  time  as  shall  be  fixed  by  the  judgment  of  a 
court  of  competent  authority   declaring  the   nullity  thereof."     If 

»  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Kd.) 
§  13. 

10  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


20  MARRIAGB 

the  grammatical  construction  of  the  section  alone  be  considered, 
it  must  be  conceded,  we  think,  that  the  qualifying  words  "and 
there  shall  have  been  no  subsequent  voluntary  cohabitation  of 
the  parties"  refer  to  and  control  actions  for  the  annulment  of 
marriages  for  incapacity  to  assent  thereto  for  want  of  age  or 
understanding  as  well  as  those  to  which  assent  has  been  obtained 
by  force  or  fraud.  But  this  is  not  conclusive.  If  there  is  any- 
thing in  the  statutes  which  evidences  a  contrary  intention  on  the 
part  of  the  legislature,  such  intention  ought  to  prevail. 

We  are  of  the  opinion  that  section  2353  contains  a  provision 
which  manifests  such  contrary  legislative  intention.  It  reads  thus: 
"No  marriage  shall  be  declared  a  nullity,  on  the  ground  that  one 
of  the  parties  was  under  the  age  of  legal  consent,  if  it  shall  ap- 
pear that  the  parties,  after  they  had  attained  such  age,  had,  for 
any  time,  freely  cohabited  together  as  husband  and  wife."  This 
provision  is  in  pari  materia  with  section  2350,  and  they  must  be 
construed  together.  If  voluntary  cohabitation  before  the  age  of 
consent  defeats  an  action  for  the  annulment  of  a  marriage  under 
section  2350,  there  is  no  necessity  for  the  provision  in  section  2353 
that  such  cohabitation  after  the  age  of  consent  is  reached  shall 
have  that  effect.  In  that  case  it  would  be  entirely  superfluous. 
But  if  the  qualifying  words  in  section  2350  be  held  to  relate  only 
to  actions  to  annul  marriages  to  which  consent  has  been  obtained 
by  force  or  fraud,  both  sections  are  operative.  We  must  assume 
the  legislature  intended  that  both  should  be  operative,  else  both 
would  not  have  been  enacted.  This  is  too  plain  an  evidence  of 
legislative   intention   to   be  disregarded. 

The  same  construction  was  given  to  the  above  statutes  by  the 
justices  of  this  court  in  circuit  court  rule  29,  adopted  in  1879.  It 
contains  the  following  provisions:  "Where  an  action  is  brought 
to  declare  a  marriage  a  nulHty  on  the  ground  that  the  plaintiff 
was  under  the  age  of  legal  consent,  the  complaint  must  allege 
that  the  plaintiff"  has  not  yet  attained  such  age,  or  that  the  par- 
ties have  not  voluntarily  cohabited  together  as  husband  and  wife 
after  the  plaintiff  has  attained  the  age  of  legal  consent.  If  such 
action  be  brought  on  the  ground  the  consent  of  the  plaintiff  was 
obtained  by  force  or  fraud,  the  complaint  must  allege  that  the  par- 
ties have  not  voluntarily  cohabiteii  together  since  the  discovery 
of  the  fraud." 

For  the  reasons  above  suggested  we  must  hold  that  voluntary 
cohabitation  of  the  parties  before  the  age  of  legal  consent  is 
reached  does  not  defeat  an  action  for  the  annulment  of  a  marriage 
on  the  ground  of  want  of  age  to  assent  thereto.  The  view  we 
have  taken  of  this  branch  of  the  case  renders  it  unnecessary  to 
determine  here  the  meaning  of  the  term  "voluntary  cohabitation" 
as  the  same  is  used  in  the  statutes  above  cited,  which  was  discussed 
by  counsel  in  argument. 


MENTAL   CAPACITY   OF   THE   PARTIES — NONAGE  21 

Section  2329,  Rev.  St.,  provides  that  "every  male  person  who 
shall  have  attained  the  full  age  of  eighteen  years,  and  every  fe- 
male who  shall  have  attained  the  full  age  of  fifteen  years,  shall 
be  capable  in  law  of  contracting  marriage,  if  otherwise  compe- 
tent." We  have  no  statute  which  expressly  provides  that  persons 
under  the  ages  respectively  named  shall  be  incapable  of  contract- 
ing marriage.  Because  of  the  omission  of  such  prohibition  in  the 
statute,  counsel  for  defendant  has  submitted  an  argument  in  sup- 
port of  the  proposition  that  valid  and  binding  marriages  may  still 
be  contracted  by  persons  who  have  reached  the  common-law  ages 
of  consent,  (which  is  understood  to  be  14  years  for  males  and  12 
years  for  females,)  although  they  have  not  reached  the  respective 
ages   specified  in  the   statute. 

The  argument  is  ingenious,  and  the  position  is  not  unsupported 
by  authority;  but  we  think  the  weight  of  authority,  as  well  as 
the  better  reason,  is  against  it.  People  v.  Slack,  15  Mich.  193, 
holds  that  the  common-law  rule  as  to  the  ages  of  consent  is  abro- 
gated by  a  statute  like  our  section  2329.  Judge  Cooley  delivered 
the  opinion  of  the  court,  and  the  case  is  an  instructive  one.  Other 
cases  to  the  same  effect  are  cited  in  the  brief  of  counsel  for  plain- 
tiff. 

Lastly,  counsel  for  defendant  maintains  that  if  the  right  to  an 
annulment  of  this  marriage  for  want  of  age  exists,  the  plaintiff 
cannot  be  heard  to  assert  such  right  until  he  reaches  the  statu- 
tory age  of  consent,  to  wit,  18  years.  Some  such  rule  may  have 
prevailed  in  early  times,  but  the  later  authorities  seem  to  reject 
it,  we  think  for  sufficient  reasons.  Tyler,  in  his  treatise  on  In- 
fancy and  Coverture,  says:  "The  better  opinion  now  is  that  parties 
marrying  before  the  age  of  consent  may  dissent  to  the  marriage 
within  nonage,  and  thus  avoid  it  in  toto."  Page  126.  This  mar- 
riage is  not  an  absolute  nullity.  It  is  only  annulled  from  such 
time  as  shall  be  fixed  by  the  judgment  of  the  court.  Section  2350. 
That  time  may,  and  in  many  contingencies  should,  be  fixed  at  a 
later  date  than  that  of  the  marriage.  During  the  time  intervening 
the  marriage  is  valid.  It  is,  so  to  speak,  a  marriage  on  condition 
subsequent,  the  condition  being  its  disaffirmance  by  a  party  thereto, 
and  annulment  thereof  by  the  court,  from  the  time  named. 

If_  the  plaintiff  had  capacity  to  become  a  party  to  such  imper- 
fect'and  inchoate  or  conditional  marriage,  he  should  have  capac- 
ity to  disaffirm  it  any  time  thereafter,  before  it  has  ripened  into 
an  absolute  marriage,  by  invoking  the  authority  of  the  court  to 
annul  it  under  the  statute.  No  good  reason  is  perceived  why  the 
parties  should  be  compelled  to  remain  in  so  unfortunate  a  posi- 
tion until  the  plaintiff  becomes  18  years  of  age.  Again,  rule  29, 
above  cited,  recognizes  the  plaintiff's  capacity  to  maintain  the  ac- 
tion before  he  reaches  that  age,  by  prescribing  what  the  complaint 
shall  contain,  if  the  action  is  thus  brought.    We  must  hold,  there- 


22  MARRIAGE 

fore,  that  the  plaintiff  may  maintain  this  action,  although  he  has 
not  reached  the  age  of  legal  consent. 

Upon  the  whole  case  our  conclusion  is  that  the  court  properly- 
overruled  the  demurrer  to  the  complaint.  ♦  *  ♦  ^rder  af- 
firmed. 


STATE  ex  rel.  SCOTT  v.  LOWELL. 

(Supreme  Court  of  Minnesota,  1899.    78  Minn.  166,  80  N.  W.  877,  46  L.  R.  A. 

440,  79  Am.   St.  Rep.  358.) 

Start,  C.  J.  On  October  18,  1899,  the  relator,  Alexander  W. 
Scott,  a  man  32  years  of  age,  and  Sadie  Lowell,  a  girl  then  only 
13  years  and  11  months  old,  the  daughter  of  the  respondent  Fred 
L.  Lowell,  were  married,  without  the  consent  of  her  parents,  in 
due  form,  by  an  ordained  minister  of  the  gospel,  upon  the  presen- 
tation of  a  license  in  due  form,  issued  by  the  clerk  of  the  proper 
county.  Cohabitation  as  husband  and  wife  followed  the  mar- 
riage, but  on  the  next  day  thereafter  the  father  went  to  the  house 
of  the  husband,  and  forcibly  took  his  daughter  away,  against  her 
will  and  wishes,  and  detained  her. 

Thereupon  a  writ  of  habeas  corpus  in  her  behalf  was  sued  out 
of  the  district  court  for  the  county  of  Hennepin,  on  the  relation 
of  her  husband.  Upon  a  hearing  on  the  return  of  the  writ  the 
court  discharged  the  writ,  and  remanded  the  wife  to  the  custody 
^and  control  of  her  father,  from  which  order  the  relator  appealed 
to  this  court.  The  cause  was  here  heard  de  novo,  pursuant  to 
Laws  1895,  c.  327.  A  referee  was  appointed  to  take  and  report 
the  evidence,  who  did  so.  The  evidence  establishes  the  facts  we 
have  already  stated,  and,  further,  that  the  husband  is  an  indus- 
trious man,  who  has  a  home,  and  is  able  to  support  a  wife  and 
family,  and  that  his  wife  is  ready  and  anxious  to  return  to  and 
live  with  him  as  her  husband,  if  relieved  from  the  restraint  of 
her  father. 

The  wisdom  of  this  marriage,  or  the  propriety  of  the  relator's 
conduct  in  inducing  this  young  girl  to  marry  him,  are  questions 
which  it  is  not  our  province  to  discuss  or  characterize.  Moralize 
as  we 'may,  the  fact  remains  that  the  parties  were  married,  and 
the  marriage  has  been  consummated ;  hence  we  are  now  sim- 
ply to  inquire  dispassionately  as  to  the  legal  status  of  the  parties. 
The  question  presented  by  the  record  is,  was  this  marriage  void 
or  voidable,  and,  if  the  latter,  did  it  emancipate  the  wife  from  the 
custody  of  her  father? 

The  common  law  established  the  age  of  consent  to  the  mar- 
riage contract  at  14  years  for  males  and  12  years  for  females,  but 
our  statute  (Gen.  St.  1894,  §  4769)  provides  "that  every  male 
person  who  has  attained  the  full  age  of  eighteen  years  and  every 


MENTAL   CAPACITT   OF   THE    PARTIES — NONAGE  23 

female  who  has  attained  the  full  age  of  fifteen  years,  is  capable 
in  law  of  contracting  marriage  if  otherwise  competent."  But  the 
statute  does  not  declare  that,  if  a  marriage  is  entered  into  wH"en 
"one  or  both  of  the  parties  are  under  the  age  limit  prescribed,  the 
marriage  shall  be  void.  It  does,  however,  impose  restrictions  and 
penalties  upon  public  officers  and  clergymen,  for  the  purpose  of 
preventing,  so  far  as  possible,  such  marriages  being  solemnized; 
but  the  statute  has,  for  wise  reasons,  stopped  short  of  declaring 
such  marriages  void. 

Such  being  the  case,  we  hold,  upon  principle  and  authority,  that 
the  marriage  of  a  person  who  has  not  reached  the  age  of  compe- 
tency as  established  by  the  statute,  but  is  competent  by  the  com- 
mon' law,  is  not  void,  but  voidable  only  by  a  judicial  decree  of     , 
nullity  at  the  election  of  the  party  under  the  age  of  legal  consent,     | 
to  be  exercised  at  any  time  before  reaching  such  age,  or  after-     j 
wards  if  the  parties  have  not  voluntarily  cohabited  as  husband 
and  wife  after  reaching  the   age  of  consent.     Gen.   St.    1894,   §§ 
4769,  4786,  4788,  4789 ;   Schouler,  Dom.  Rel.  §  20 ;   14  Am.  &  Eng. 
Enc.  Law,  488;    1  Bish.  Mar.  &  Div.  §  145;    Beggs  v.  State,  55 
Ala.  108;   Eliot  v.  Eliot,  yi  Wis.  634,  46  N.  W.  806,  10  L.  R.  A. 
568;   State  v.  Cone,  86  Wis.  498,  57  N.  W.  50.     The  marriage  be- 
ing voidable,  it  must  be  treated  as  valid  for  all  civil  purposes  un- 
til annulled  by  judicial  decree.    Schouler,  Dom.  Rel.  §  14. 

Now,  the  question  of  the  right  of  the  respondent,  as  father  of 
the  relator's  wiTe7t'o  restrain  her  from  going  to  her  husband,  must 
be  determined  upon  the  basis  that  the  marriage  is  valid.     The 
marriage  of  a  minor,  even  without  the  parent's  consent,  eman- 
cipates the  child  from  the  custody  of  the  parent ;   for  the  marriage 
creates  relations  inconsistent  with  subjection  to  the  control  of  the 
parent.     Parental  rights  must  yield  to  the  necessities  of  the  new 
status  of  the  child.     1  Bish.  ^lar.  &  Div.  §  275 ;    Schouler,  Dom. 
Rel.  §  267.    The  correctness  of  this  proposition  as  a  general  rule 
is  admitted,  but  it  is  claimed  on  behalf  of  the  father  that  it  does 
not  apply  to  this  case,  because  the  husband  cannot  enforce  his 
marital  rights  without  the  consent  of  the  wife,  and  that  she  cannot, 
by  giving  her  consent  to  a  voidable  marriage,  free  herself  from 
parental   control,   and,  further,  that  she   cannot   do   so  until   she 
reaches  the  age  when  she  can  legally  affirm  the  marriage;    that 
to  hold  otherwise  would  enable  a  girl  under  12  and  over  7  years 
of  age  to  emancipate  herself  by  consenting  to  a  voidable  marriage. 
This  course  of  reasoning  ignores  the  fact  that  the  marriage,  un- 
.  til  set  aside,  must  be,  for  all  civil  purposes,  treated  as  valid,  and 
'  that  it  is  her  new  and  inconsistent  status  as  a  wife  which  eman- 
cipates her  from  the  control  of  her  father.    A  wife — and  this  girl 
must  be  regarded  as  such  for  the  purposes  of  this  case — certainly 
has  the  capacity  to  consent  to  live  with  her  husband.     Whether 
the  marriage  of  a  child  under  12  years  of  age  and  over  7  would  em- 


24  MARRIAGE 

ancipate  her,  we  need  not  determine.  It  would  seem,  however,  that 
the  operation  of  natural  laws  would  incapacitate  her  in  fact  from 
assuming  the  new  and  inconsistent  relations  which  emancipate 
a  minor  from  parental  control. 

Our  conclusion  is  that  the  respondent  is  not  legally  entitled  to 
-iifitaiu.his  daughter^  if  she  elects  to  return  and  live  with  her  hus- 
band. Therefore  it  is  ordered  that  Sadie  Scott,  the  wife  of  the 
relator,  Alex.  W,  Scott,  be  freed  from  the  restraint  of  her  father, 
the  respondent  Fred  L.  Lowell,  and  that  he  surrender  her  to  the 
relator,  if  she  elects  to  live  with  him  as  her  husband.  Let  judgment 
be  so  entered. 


VI.  Capacity  of  Parties  Otherwise  Than  Mentally- 
Prior  Marriage  ^^ 


DRUMMOND  v.  IRISH. 
(Supreme  Court  of  Iowa,  1879.    52  Iowa,  41,  2  N.  W.  622.) 

Action  by  Rebecca  Drummond  to  recover  certain  personal  prop- 
^erty-otthe  estate  of  John  Drummond,  deceased,  set  off  to  plain- 
tijf  as  the  widow  of  said  Drummond.  The  defendant,  James  D. 
Irish,  administrator  of  the  estate,  alleged  that  plaintiff  was  not 
the  lawful  wife  of  said  Drummond,  that  at  the  time  of  her  mar- 
riage to  Drummond  she  had  a  husband  living  from  whom  she 
had  not  been  divorced.  On  the  trial  it  was  found  that  the  marriage 
of  plaintiff  and  deceased  was  a  valid  marriage  and  the  property 
in  question  was  awarded  to  plaintiff  as  widow  of  deceased.  Defend- 
ant appeals. 

RoTHROCK,  J. ^2  It  appears  from  the  evidence,  and  an  agreement 
made  by  the  parties,  that  plaintiff  was  married  in  due  form  to 
one  Wi_P^.Katon,  prior  to  her  marriage  with  John  Drummond, 
and  that  at  the  time  of  her  marriage  with  Drummond  Eaton  was 
still  living,  and  that  he  and  the  plaintiff  had  not  been  divorced^ 
nor  the  bonds  of  matrimony  existing  between  them  severed  by 
any  judicial  or  other  legal  proceeding,  and  said  Eaton  is  still  liv- 
ing, and  still  undivorced  from  plaintiff.  It  further  appears  that  at 
the  time  of  the  marriage  of  plaintiff  with  said  Eaton  he  had  a  wife 
living,  from  whom  he  had  not  been  divorced,  and  that  said  wife 
is  still  living,  and  not  divorced  from  him,  and  that  plaintiff  never 
lived  with  said._Eat£LDL-aiterj§]ie  was  married  to  him. 

11  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
I  18. 

12  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


FORMALITIES   IN    CELEBRATION — INFORMAL   MARRIAGES  25 

Section  2201  of  the  Code  provides  that  "marriages  between  per- 
sons where  marriage  is  prohibited  by  law,  oT'who  have  a  husband 
or  wife  living,  are  void.  *  *  *"  The  marriage  of  the  plaintiff 
with  Eaton  was  therefore  void,  and  neither  of  them  acquired  any 
rights  thereby,  and  the  plaintiff  lost  no  right.  Being  void  it  was 
the  same  as  though  no  marriage  had  ever  taken  place.  The  mar- 
riage with  Drummond  was  therefore  valid,  and  the  court  properly 
held  that  plaintiff  was  entitled  to  the  property  as  widow.  See 
Carpenter  v.  Smith,  24  Iowa,  200;  2  Bouvier's  Law  Diet.  246. 

It  is  contended  by  counsel  for  defendant  "that  the  first  and  il- 
legal marriage  must  be  judicially  annulled  before  civil  rights  can 
be  acquired  or  civil  remedies  demanded  by  reason  of  a  subsequent 
legal  marriage."  This  position  would  doubtless  be  correct  if  the 
marriage  were  merely  voidable,  but  it  can  have  no  application  to 
that  which  the  law  declares  to  be  a  void  marriage.  The  fact  that 
the  Code  contains  provisions  for  annulling  marriages  of  this  char- 
acter, and  judicially  determining  the  status  of  the  parties,  cannot 
be  regarded  as  changing  the  rule  which  has  always  obtained  that 
a  void  marriage  is  no  marriage.     *     *     *     Judgment  affirmed.  ^^ 


VII.  Formalities  in  Celebration — Informal  Marriages  ^* 
RENFROW  V.  RENFROW. 

(Supreme  Court  of  Kansas,  1899.     60  Kan.  277,  56  Pac,  534,  72  Am.  St. 

Rep.  350.) 

DosTER,  C.  J.  Grant  and  Ann  Renfrow  were  colored  persons 
living  in  the  state  of  Missouri.  They  married  each  other  in  1852 
according  to  the  ordinary  form  of  marriage  agreement  and  cere- 
mony. This  marriage  did  not  confer  upon  them  any  legalized 
matrimonial  status  or  relation.  It  was  not  deemed  illegal  or  im- 
moral by  the  law  then  obtaining,  but  it  did  not  constitute  them  hus- 
band and  wife.  "It  was  an  inflexible  rule  of  the  law  of  African 
slavery,  wherever  it  existed,  that  the  slave  was  incapable  of  en- 
tering into  any  contract,  not  excepting  the  contract  of  marriage." 
Hall  v.  U.  S.,  92  U.  S.  27,  23  L.  Ed.  597.  "Marriage  is  based  upon 
contract;  consequently  the  relation  of  husband  and  wife  cannot 
exist  among  slaves.  It  is  excluded  both  on  account  of  their  in- 
capacity to  contract,  and  of  the  paramount  right  of  ownership  in 
them  as  property."  Howard  v.  Howard,  51  N.  C.  235.  To  the  same 
effect  is  Johnson  v.  Johnson,  45  Mo.  595. 

18  See,  also,  Gall  v.  Gall,  post,  p.  2S. 

14  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
|§  19-21. 


26  MARRIAGH 

As  presently  more  particularly  stated,  the  persons  named  lived 
together  as  husband  and  wife  until  1868.    Missouri  was  not  within 
the  insurrectionary  portions  of  slaveholding  territory,  over  which 
the  emancipation  proclamations  of  September  22,  1862,  and  Jan- 
uary  1,    1863,  operated.     'Slavery   continued  to  exist  there  until 
abolished,  January   11,   1865,  by  ordinance   of  the   constitutional 
convention  of  that  state.     Gen.  St.  Mo.  p.  46.     After  the  passage 
of  this  ordinance,  and  on  February  20,  1865,  the  legislature  of  Mis- 
*  souri  enacted  the  following  statute :    "That  in  all  cases  where  per- 
sons of  color  heretofore  held  as  slaves  in  the  state  of  Missouri 
have  cohabited  together  as  husband  and  wife,  it  shall  be  the  duty 
of  persons  thus  cohabiting  to  appear  before  a  justice  of  the  peace 
of  the  township  where  they  reside,  or  before  any  other  officer 
authorized  to  perform  the  ceremony  of  marriage,  and  it  shall  be 
the  duty  of    such  officer  to  join  in  marriage  the  persons  thus  ap- 
plying, and  to  keep  a  record  of  the  same.     Free  persons  of  color 
living  or  cohabiting  together  as  husband   and  wife  without  be- 
ing married  according  to  the  provisions  of  this  act,   shall,  after 
twelve  months  from  its  passage,  be  liable  to  criminal  prosecution, 
and  subject  to  same  penalties  as  now  provided  by  law.     Provided, 
however,  that  this  section  shall  not  extend  to  colored  persons,  who 
have  enlisted  in  the  service  of  the  United  States  or  state  of  Mis- 
souri, who  shall  not  be  subjected  to  any  penalty  for  its  violation 
until  six  months  after  their  discharge  from  said  service." 

The  Renfrows  never  complied  with  the  provisions  of  this  law. 
In  disregard  of  it,  they  continued  to  live  together  until  1868,  in 
which  year  Grant  abandoned  Ann,  declaring  his  intention  to  no 
longer  recognize  her  as  his  wife.  Thenceforth  he  never  did  recog- 
nize her  as  such,  but  several  times  thereafter  married  other  wo- 
men, by  some  of  whom  he  had  children.  Throughout  the  time  in- 
tervening between  his  emancipation  from  slavery  and  his  separa- 
tion from  Ann,  they  lived  together  in  Missouri  as  husband  and 
wife,  mutually  recognizing  and  holding  each  other  out  in  the  face 
of  the  world  as  such.  Grant  Renfrow  moved  to  Kansas,  and  ac- 
cumulated here  a  small  amount  of  property.  He  died.  This  ac- 
tion was  instituted  by  his  first  wife,  Ann,  in  assertion  of  her  rights, 
as  his  widow,  to  a  division  of  the  property  left  by  him.  To  this 
action  his  children  and  his  last  wife,  Medora,  were  made  defend- 
ants. Upon  the  facts  above  summarized,  judgment  was  rendered 
against  them,  and  they  prosecute  error  to  this  court. 

It  is  admitted  by  counsel  for  plaintiffs  in  error  that  consensual 
or  common-law  marriages  are,  and  at  the  dates  above  mentioned 
were,  recognized  as  valid  in  the  state  of  Missouri.  It  is,  however, 
insisted  that  the  above-quoted  Missouri  statute  disqualified  persons 
of  color  from  contracting  marriage  according  to  the  common  law. 
It  is  insisted  that  the  penal  provisions  of  this  statute  excluded 
such  class  of  persons  from  the  operation  of  the  common  law  of 


FORMALITIES   IN    CELEBRATION — INFORMAL   MARRIAGES  27 

consensual  marriage,  and  rendered  ineffectual  and  void  all  agree- 
ments of  marriage  by  such  persons  which  were  not  solemnized 
according  to  its  provisions. 

The  plaintiffs  in  error  are  mistaken.  The  statute  in  question 
does  not  pretend  to  operate  upon  the  marriage  status.  It  does 
not  pretend  to  annul  or  forbid  the  marriage  relation  because 
not  entered  into  in  accordance  with  prescribed  forms.  It  only 
provides  penalties  for  noncompliance  with  certain  ceremonies  of 
solemnization.  It  is,  in  effect,  like  the  statute  of  this  state  dis- 
cussed in  State  v.  Walker,  36  Kan.  297,  32  Pac.  279,  59  Am.  Rep. 
556,  in  which  it  was  held  that  "punishment  may  be  inflicted  upon 
those  who  enter  the  marriage  relation  in  disregard  of  the  prescribed 
statutory    requirements,    without    rendering    the    marriage    itself 

void." 

The  general  doctrine  is  that  a  marriage  good  at  common  law 
is  good  notwithstanding  the  neglect  of  statutory  forms  relating 
to  the  subject,  unless  the  statute  itself  contains  express  words  of 
nullity  because  of  the  failure  to  conform  to  its  requirements.  1 
Bish.  Mar.  &  Div.  (5th  Ed.)  §  283;  Meister  v.  Moore,  96  U.  S. 
76,  24  L.  Ed.  826.  The  statute,  it  will  be  observed,  makes  it 
the  "duty"  of  colored  persons  to  solemnize  their  marriage  agree- 
ment before  an  officer,  but  it  does  not  abrogate  the  marital  re- 
lation as  a  penalty  for  the  violation  of  its  provisions. 

It  is  also  insisted  that  the  facts  stated  do  not  show  the  exist- 
ence of  a  consensual  or  common-law  marriage  between  Grant 
and  Ann  Renfrow,  because  no  express  agreement  between  them 
to  take  and  live  with  each  other  as  husband  and  wife  was  shown 
to  have  been  made  at  any  time  intermediate  their  emancipation 
from  slavery  and  their  separation  three  years  later,  without  which 
agreement,  it  is  contended,  such  kind  of  marriage  cannot  exist,  or, 
to  state  the  contention  of  the  plaintiffs  in  error  more  accurately, 
cannot  be  proved.  It  is  true,  the  making  of  such  agreement  was 
not  shown,  but  it  does  not  follow  that  legal  proof  of  the  marriage 
was  lacking.  If  a  marriage  contract  need  not  be  evidenced  by 
writing — and,  of  course,  it  need  not  be — we  can  conceive  of  no 
reason  why  it  may  not,  like  many  other  civil  contracts,  be  evi- 
denced by  acts  and  conduct  from  which  its  making  ore  tenus  may 
be  presumed.  The  acts  and  conduct  of  Grant  and  Ann  Renfrow 
after  the  removal  of  their  disabilities  were  in  recognition  of  each 
other  as  husband  and  wife ;  were  continued  for  a  sufiicient  length 
of  time,  and  with  such  openness  to  the  world,  as  to  estop  each 
other  from  claiming  to  the  contrary,  and  to  establish  for  them- 
selves the  marital  status  in  the  community  where  they  resided. 

In  the  case  of  Francis  v.  Francis,  31  Grat.  (Va.)  283,  the  same  con- 
tention was  made  before  the  court  of  appeals  of  Virginia,  in  the 
case  of  a  colored  man  and  woman,  as  the  plaintiffs  in  error  make 
before  us  in  this  case.     In  the  opinion  of  the  court  in  that  case 


28  MARRIAGE 

it  was  said:  "It  must  appear  that  they  have  agreed  to  occupy- 
that  relation.  The  fact  that  they  have  agreed  to  do  so  is,  how- 
ever, not  always  susceptible  to  direct  proof.  The  courts  must 
in  many  cases  infer  it  from  circumstances.  It  is  not  necessary 
that  the  parties  shall  have  expressly  agreed  to  live  together^  as 
husband  and  wife.  The  agreement  or  understanding  may  be  im- 
plied, as  in  other  cases,  from  their  conduct  and  declarations.  In 
the  present  case  there  is  no  positive  proof  of  an  express  agreement 
of  the  appellant  and  the  appellee  to  occupy  the  relation  to  each 
other  of  husband  and  wife.  But  the  circumstances  tending  to  show 
an  implied  understanding  of  that  sort  are  almost  as  satisfactory 
as  the  direct  testimony  of  unimpeached  witnesses  to  the  fact." 

The  facts  involved  in  McReynolds  v.  State,  5  Cold.  (Tenn.)  18, 
were  identical  with  those  now  under  consideration;  and  in  that 
case  the  court  held  that,  after  the  living  together  of  a  slave  man 
and  woman  as  husband  and  wife,  a  mutual  recognition  by  them  of 
each  other  in  that  relation,  after  the  removal  of  their  disabilities 
by  emancipation,  constituted  a  consensual  marriage.     *     *     ♦ 

Judgment  affirmed. 


J 


GALL  v.  GALL. 

(Court  of  Appeals  of  New  York,  1SS9.    114  N.  T.  109,  21  N.  E.  lOG.) 

Action  by  Amelia  Gall  against  Charles  F.  Gall  for  the  admeasure- 
ment of  dower  in  the  lands  of  Joseph  Gall,  deceased,  of  whom  plain- 
tiff claimed  to  be  the  wife.  Judgment  for  plaintiff,  which  was  ai- 
firmed  by  the  general  term  on  appeal,  and  defendants  again  appeal. 

Vann,  J.  '^  By  this  action  the  plaintiff',  alleging  that  she  was 
the  lawful  wife  of  one  Joseph  Gall,  deceased,  sought  to  recover 
dower  in  the  lands  of  which  he  died  seised.  As  she  made  no  effort 
to  prove  ceremonial  marriage  between  herself  and  Mr.  Gall,  the 
decision  of  the  issue  turned  primarily  upon  the  inference  to  be 
drawn  from  certain  acts  and  declarations  of  the  parties,  and  their 
marital  reputation  among  their  acquaintances. 

The  competency  of  the  plaintiff  to  contract  marriage  with  Mr. 
Gall  was  questioned,  upon  the  ground  that  she  had  been  previously 
married  to  one  John  Jermann,  who  was  still  living,  undivorced, 
at  the  time  of  the  trial.  It  was  conceded  that  she  had  no  right  to 
marry  Mr.  Gall,  provided  her  marriage  to  Mr.  Jermann  was  valid. 
This  depended  upon  the  competency  of  Jermann  to  marry,  as 
he  had  a  living  wife,  Helena,  from  whom  he  had  not  been  divorced 
at  the  time  he  married  the  plaintiff.  The  competency  of  Jermann 
to  marry  the  plaintiff'  rested  upon  that  provision  of  the  Revised 
Statutes  which  permits  a  man,  already  married,  to  marry  again, 

1 5  Part  of  the  opinion  is  omitted. 


rORMALITIES    IN    CELEBRATION INFORMAL   MARRIAGES  29 

provided  his  former  wife  shall  have  absented  herself  for  the  space 
of  five  successive  years  without  being  known  to  him  to  be  living 
during  that  period.    3  Rev.  St.  (7th  Ed.)  p.  2332,  §  6. 

Thus  upon  the  trial  there  arose  three  questions  of  fact,  which 
were  submitted  to  a  jury  for  decision,  in  the  following  form:  (1) 
Did  Helena  Jermann,  the  first  wife  of  John  Jermann,  absent  her- 
self for  the  space  of  five  years  prior  to  the  marriage  of  Jermann 
to  the  plaintiff,  within  the  meaning  of  the  statute  upon  that  sub- 
ject? (2)  Was  said  Helena  Jermann  known  to  John  Jermann  to  be 
living  during  the  period  of  five  years  immediately  preceding  his 
marriage  to  the  plaintiff?  (3)  Did  the  plaintiff  and  Joseph  Gall, 
deceased,  at  any  time  between  the  month  of  February,  1883,  and 
the  decease  of  said  Gall,  intermarry?  The  jury,  after  answering 
the  first  question  in  the  negative,  and  the  second  and  third  in  the 
affirmative,  found  a  general  verdict  for  the  plaintiff. 

The  first  question  presented  for  decision  is  whether,  within  the 
rules  governing  appeals  to  this  court,  there  was  sufficient  evidence 
to  support  the  findings  of  the  jury.  The  determination  of  this 
question  requires  a  somewhat  extended  examination  of  the  facts, 
as  the  jury  may  be  presumed  to  have  found  them.  Joseph  Gall 
died  May  22,  1886,  in  the  eighty-second  year  of  his  age.  He  mar- 
ried in  early  life,  and  his  wife,  after  living  with  him  for  many 
years,  died  on  the  23d  of  February,  1883,  leaving  no  children.  The 
plaintiff,  under  the  name  of  Amelia  Stieb,  was  employed  in  the 
family  as  an  ordinary  servant  from  1877  until  the  death  of  Mrs. 
Gall,  and  after  that  event  she  ^continued  to  serve  Mr.  Gall  for  a 
time  in  the  same  capacity,  at  his  residence,  No.  4  Rutherford  place, 
in  the  city  of  New  York.  During  this  period  the  outward  relations," 
at  least,  between  Mr.  Gall  and  the  plaintiff  were  simply  those  of 
master  and  servant.  -She_  cooked  his  meals  and  kept  his  house, 
"but  did  not  sit  at  his  table  nor  apparently  have  any  unusual  priv^^. 

iTege. 

During  the  spring  or  summer  of  1883,  however,  a  criminal 
intimacy  sprang  up  between  them;  and  in  the  fall,  believing  that 
she  was  pregnant  by  him,  he  requested  his  physician  to  make  a 
physicaf  examination,  which  resulted  in  the  discovery  that  she 
was  with  child.  He  thereupon  gave  up  his  establishment  at  No.  4 
"Rutherford  place,  and  took  rooms  at  the  Westminster  Hotel,  while 
she  removed  to  a  tenement  house,  where  he  supported  her,  and 
furnished  her  with  a  servant.  In  February,  1884,  the  plaintiff  was 
'delivered  of  a  daughter,  of  whom  he  acknowledged  in  many  ways 
that  he  was  the  father.  In  May,  1884,  he  moved  her  to  a  house 
in  Brooklyn,  recently  purchased  by  him  for  the  purpose,  where 
she  lived  with  her  mother,  brother,  and  sister,  all  supported  by 
him.  He  stated  at  the  time,  to  one  person,  that  he  bought  this 
house  for  his  wife  and  child,  and  to  another  that  he  bought  it  for 
His   family.      Previously   he   had    called    plaintiff's    mother    "Mrs. 


30  MARRIAGE 

_S^tieb,"  but  after  this  he  habitually  called  her  "mother,"  and  once_ 
told  her  that  the  plaintiff  was  his  wife. 

In  May,  1884,  he  went  to  Europe,  returning  in  July,  when  he  re- 
sumed his  rooms  at  the  Westminster,  and  thereafter,  until  March, 
<i^      1886,  he  visited  the  plaintiff  at  the  house  in  Brooklyn  from  one  to 
three  times  a  week,  generally  remaining  over  night,  and  usually 
from   Saturday   evening  until   Monday   morning.     They   occupied 
the  same  bed,  ate  at  the  same  table,  and  all  of  their  apparent  re- 
'.  Nations  were  those  of  husband  and  wife.    From  the  time  the  plain- 
'.Itiff  began  to  live  in  the  Brooklyn  house  until  the  date  of  his  death 
Hhe  treated  her  in  that  locality  as  his  wife,  and  she  was  reputed 
in  that  neighborhood  to  be  his  wife.    He  introduced  her  as  such  to 
the  neighbors ;  spoke  to  her  and  of  her  to  servants,  and  others  hav- 
ing business  in  the  house,  as  his  wife ;  referred  mechanics  to  "  Mrs. 
Gall"  for  further  particulars  in  making  repairs  that  he  had  ordered ; 
directed  plumbers  to  do  whatever  his  wife  ordered,  and  said  that 
he  would  pay  for  it;  and  said  to  plaintiff's  sister  and  her  husband, 
as  he  gave  them  a  present  on  their  wedding  anniversary,  "this  is 
a  small  present  from  myself  and  wife."    On  one  occasion  Mr.  Gall, 
the  plaintiff,  and  the  child  were  at  Rockaway  Beach,  and,  as  "he 

;was  dancing  around  with  the  child,  *  *  *  the  people  were 
making  remarks  about  it,  and  asked  him  whether  that  was  his 
child,"  when  he  answered:  "Yes;  that  is  my  child,  and  there  is 
my  wife." 

A  few  months  before  his  death  he  said  to  his  partner  in  business 
that  he  was  not  going  to  Europe  that  year,  because  he  expected 
an  increase  in  the  family,  and,  on  being  asked  if  he  was  actually 
married  to  the  plaintiff,  said  that  he  had  taken  legal  advice  on  the 

'matter,  and  that  according  to  the  laws  of  the  state  of  New  York 

'he  was  married  to  her.  When  urged  on  the  same  occasion  to  have 
a  ceremony  performed  for  the  sake  of  the  children,  "one  living  and 
one  coming,"  he  said  that  he  did  not  care  to  make  his  private 
affairs  public.  In  March  or  April,  1886,  he  left  his  rooms  at  the 
hotel,  and  moved  his  furniture  to  the  house  in  Brooklyn,  stating 
that  he  went  there  to  reside  permanently,  and  thenceforward  he 
did  reside  there,  until  his  death. 

,  It  was  conceded  that  while  Mr.  Gall  was  at  the  Westmmster 
Hotel  he  lived  by  himself,  without  any  relations  to  the  plaintiff  or 
her  family,  so  far  as  his  life  there  was  concerned.  His  old  ac- 
quaintances, many  of  them  persons  of  position,  supposed  that  he 
was  a  widower.  Aside  from  his  business  partner,  he  does  not 
appear  to  have  told  any  of  them  that  the  plaintiff  was  his  wife. 

;  Only  one  other  of  his  old  friends,  however,  seems  to  have  known 
that  he  cohabited  with  her,  and  he  said  nothing  to  him  upon  the 

i  subject,  although  he  was  the  physician  employed  by  Mr.  Gall  to 
attend  the  plaintiff  upon  the  birth  of  the  child.     To  a  few  of  his 

,  old  acquaintances,  who  did  not  know  of  his  intimacy  with  her,  or 

\ 


FORMALITIES   IN    CELEBRATION — INFORMAL   MARRIAGES  31 

that  he  had  had  a  child  by  her,  he  spoke  of  the  plaintiff  as  his 
cook  or  his  housekeeper.  He  did  not  take  her  to  see  his  relatives 
or  old  friends,  or  to  the  places  which  he  frequented.  On  one  oc- 
casion, when  joked  about  getting  married  again,  he  said  that  he 
would  not  marry  the  best  woman  who  ever  trod  in  shoe-leather, 
and  on  another  that  he  would  not  marry  the  best  girl  that  ever 
lived.  To  one  person  he  said  that  he  was  a  married  man,  but  his 
wife  was  dead ;  and  to  another,  about  six  weeks  before  his  death, 
that  he  should  never  marry  again.  He  made  other  declarations 
of  like  character,  but  none  of  the  persons  to  whom  these  state- 
ments were  made  appear  to  have  known  of  the  plaintiff's  existence. 

Prior  to  leaving  Rutherford  place,  on  the  first  of  January,  1884, 
the  plaintiff  disclaimed  being  Mrs.  Gall.  She  did  not  attend  the 
funeral  of  Mr.  Gall,  but  she  was  advised  not  to  on  account  of  her 
condition,  being  that  of  advanced  pregnancy.     *     *     * 

In  August,  1871,  the  plaintiff  was  married  to  John  Jermann, 
knowing  that  he  had  been  married  before,  but  believing  that  he 
was  divorced.  She  lived  with  him  until  1875,  when,  learning  that 
he  had  not  been  divorced,  she  left  him.  Jermann  was  married  to 
Helena  Pfeiffer  on  October  28,  1865.  He  lived  with  her  about 
two  weeks,  when  she  left  him.  Six  months  later  he  found  her 
in  a  house  of  assignation,  and  shortly  afterwards,  they  met  at  the  ^ 
office  of  a  lawyer,  who  prepared  articles  of  separation,  which  they  j  -^^U. 
signed  in  the  presence  of  witnesses,  and  each  took  a  copy.  He 
never  saw  her  again,  but  believed  that  the  articles  of  separation 
were  a  divorce.  In  1870  he  heard  that  she  was  dead.  In  fact  she 
was  living  as  late  as  1873,  two  years  after  his  marriage  to  the 
plaintiff,  and  was  seen  during  that  year  in  Indianapolis  and  New 
York.  *  *  *  Jermann  never  inquired  to  find  out  where  she 
was,  except  on  one  occasion,  when  he  asked  an  acquaintance,  who 
said  that  he  did  not  know  anything  about  it.  He  continued  to 
live  in  the  same  neighborhood  as  when  he  married  Helena,  and 
knew  her  brothers  and  sisters,  her  aunt  and  cousin,  and  others  of 
her  relations,  and  where  some  of  them  lived.  He  heard  once  that 
her  family  had  moved  west,  but  made  no  eft'ort  to  find  out  about 
them  or  about  her.  He  told  the  plaintiff  both  before  and  after  he 
married  her,  that  Helena  was  living,  but  that  he  had  a  divorce  from 
her.     *     *     * 

Did  these  facts  authorize  the  jury  to  draw  the  final  inferences 
necessary  to  uphold  their  verdict?  The  cohabitation,  apparently 
decent  and  orderly,  of  two  persons  opposite  in  sex,  raises  a  pre- 
sumption of  more  or  less  strength  that  they  have  been  duly  mar- 
ried. While  such  cohabitation  does  not  constitute  marriage,  it 
tends  to  prove  that  a  marriage  contract  has  been  entered  into  by 
the  parties.  Where,  however,  the  cohabitation  is  illicit  in  its  ori- 
gin*, the  presumption  is  that  it  so  continues  until  a  change  in  its 
character  is  shown  by  acts  and  circumstances  strongly  indicating 


/'^ 


32  MARRIAGB 

that  the  connection  has  become  matrimonial.  It  is  sufficient  if  the 
acts  and  declarations  of  the  parties,  their  reputation  as  married 
people,  and  the  circumstances  surrounding-  them  in  their  daily- 
lives,  naturally  lead  to  the  conclusion  that,  although  they  began  to 
live  together  as  man  and  mistress,  they  finally  agreed  to  live  to- 
gether as  husband  and  wife.  Caujolle  v.  Ferrie,  23  N.  Y.  90; 
O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  Badger  v.  Badger,  88  N.  Y. 
546,  554,  42  Am.  Rep.  263;  Hynes  v.  McDermott,  91  N.  Y.  451,  457, 
43  Am.  Rep.  677. 

A  present  agreement  between  competent  parties  to  take  each 
other  for  husband  and  wife  constitutes  a  valid  marriage,  even  if  not 
in  the  presence  of  witnesses.  Clayton  v.  Wardell,  4  N.  Y.  230; 
Caujolle  V.  Ferrie,  supra;  Brinkley  v.  Brinkley,  50  N.  Y.  184,  197, 
10  Am.  Rep.  460.  Such  a  marriage  may  be  proved  by  showing 
actual  cohabitation  as  husband  and  wife,  acknowledgment,  declar- 
ations, conduct,  repute,  reception  among  neighbors  and  relations, 
and  the  like.  And  where  the  intercourse  was  illicit  at  first,  but  was 
not  then  accompanied  by  any  of  the  evidences  of  marriage,  and  sub- 
sequently it  assumes  a  matrimonial  character,  and  is  surrounded, 
by  the  evidences  of  a  valid  marriage  above  named,  a  question  of 
fact  arises  for  the  determination  of  the  jury.  They  are  to  weigh 
the  presumption  arising  from  the  meretricious  character  of  the 
connection  in  its  origin  with  the  presumption  arising  from  the  sul>- 
sequent  acknowledgment,  declarations,  repute,  etc.,  and  decide 
whether  all  of  the  circumstances,  taken  together,  are  sufficient  evi- 
dence of  marriage. 

The  application  of  these  principles  to  the  facts  of  this  case  leaves 
no  doubt  that  the_iury  was  warranted  in  finding  that  the  plain- 
iff  and  Mr.  Gall  were  married.  The  only  evidence  of  the  time 
when  their  intercourse  began  is  the  pregnancy  of  the  plaintiff, 
discovered  in  August  or  September,  1883.  They  were  not  then 
living  together  as  husband  and  wife,  but  as  master  and  servant. 
She  did  not  sit  at  his  table,  nor,  so  far  as  was  known,  sleep  in 
his  bed.  They  had  not  held  themselves  out  as  married,  nor  made 
any  acknowledgment  or  declaration  upon  the  subject.  Neither 
their  conduct  nor  reputation  in  any  way  indicated  a  married  rela- 
tion. The  connection  was  purely  licentious,  and  its  only  effect 
was  to  destroy  the  presumption  of  innocence  when  they  began  to 
openly  cohabit.  Contrast  this  state  of  affairs  with  that  which  ex-" 
isted  just  before  the  death  of  Mr.  Gall.  They  were  then  openly 
living  together  as  husband  and  wife,  and  were  recognized  as  such 
by  the  mother,  brother,  and  sisters  of  the  plaintiff,  by  the  physi- 
cian, the  neighbors,  and  by  all  who  had  either  social  or  business 
relations  with  them.  A  child  had  been  born  to  them,  who  bore 
his  name,  at  whose  baptism  he  was  present,  and  whom  in  every 
way  he  acknowledged  as  his  daughter.  Neither  of  them  had  any 
home  other  than  that  where  they  openly  lived  together,  with  their 


FORMALITIES   IN    CELEBRATION — INFORMAL   MARRIAGES  33 

child,  as  a  family.  He  called  her  his  wife  in  the  presence  of  oth- 
ers, said  she  was  his  wife  in  her  absence,  and  told  his  old  partner 
in  business  that  according  to  law  they  were  married.  He  volun- 
teered to  acknowledge  both  wife  and  child  when  there  was  no 
occasion  to  say  anything  to  save  appearances. 

All  of  the  circumstances  surrounding  them  tended  to  show  that 
they  were  married.  One  fact,  which  affected  him  only,  and  hence 
was  immaterial,  waslncbnsistent  with  the  presumption  of  mar- 
riage. Jle  passed  as  unmarried  with  his  old  friends  and  acquaint- 
ances, p^ossibly  because  he  did  not  wish  them  to  know  that  he 
had  married  his  cook.  But  it  was  held  in  Badger  v.  Badger,  su- 
pra, that  evidence  of  divided  repute  must  be  confined  to  those  who 
have  knowledge  of  the  cohabitation,  and  that  proof  that  a  man 
was^  reputed  to  be  unmarried,  given  by  his  friends  who  knew 
nothing  of  the  putative  wife,  or  of  the  fact  of  cohabitation,  was 
mere  hearsay.  The  reputation  of  Mr.  Gall  at  the  Westminster 
Hotel,  therefore,  did  not  tend  to  explain  the  character  of  his  co- 
habitation with  the  plaintiff. 

The  competency  of  the  plaintiff  to  marry  Mr.  Gall  is  an  im- 
portant question,  depending  upon  the  competency  of  Jermann,  her 
first  husband,  to  marry  her,  as  he  had  a  living  wife.  The  statute 
covering  the  subject  is  as  follows,  viz.:  "If  any  person  whose  hus- 
band or  wife  shall  have  absented  himself  or  herself,  for  the  space 
of  five  successive  years,  without  being  known  to  such  person  to 
be  living  during  that  time,  shall  marry  during  the  life-time  of 
such  absent  husband  or  wife,  the  marriage  shall  be  void  only  from 
the  time  that  its  nullity  shall  be  pronounced  by  a  court  of  compe- 
tent authority."  3  Rev.  St.  (7th  Ed.)  p.  2332,  §  6.  Assuming  that 
the  declaration  of  Jermann  that  his  first  wife  was  alive  was  in- 
competent evidence  to  establish  the  fact  that  she  was  not  known 
to  him  to  be  living  during  the  statutory  period,  still,  as  no  objec- 
tion was  made,  it  was  not  error  to  receive  it. 

The  defendants,  however,  insist  that  there  was  no  other  evi- 
dence upon  the  subject,  and  that  a  verdict  resting  only  upon  in- 
competent evidence,  even  if  received  without  objection,  should  not 
stand.  But,  as  Jermann's  first  wife  was  in  fact  alive  at  the  time 
that  he  married  the  plaintiff,  the  question  of  fact  still  remained 
whether  he  acted  in  good  faith  in  contracting  a  second  marriage. 
The  section  quoted  seems  to  be  based  upon  the  probability  that 
the  absentee  is  dead,  and  is  apparently  designed  to  protect  the 
person  who,  in  good  faith,  acts  upon  the  statute,  from  evil  results, 
if  the  absentee  is  in  fact  alive.  The  first  marriage  is  suspended, 
or,  as  was  held  in  Griffin  v.  Banks,  24  How.  Prac.  213,  it  is  "placed 
in  abeyance,"  but  it  is  not  reinstated  by  the  return  of  the  absentee, 
because  the  second  marriage  becomes  void  only  from  the  time 
that  it  is  so  declared  by  a  competent  court.  Otherwise  both  mar- 
COOLEY  P.  &  D.Rel.— 3 


34  MARRIAQB 

riages  would  be  in  force  at  the  same  time,  and  to  this  extent 
polygamy  would  be  sanctioned  by  law.  The  first  marriage  ceases 
to  be  binding  until  one  of  the  three  parties  to  the  two  marriages 
procures  a  decree  pronouncing  the  second  marriage  void.  3  Rev. 
St.  (6th  Ed.)  p.  142,  §§  36,  37;   Code  Civil  Proc.  §  1745. 

A  statute  with  such  possibilities  should  be  so  construed  as  to 
promote  good  order,  and  the  person  availing  himself  of  its  priv- 
ilege should  be  required  to  act  in  perfect  good  faith.  Jones  v. 
Zoller,  32  Hun,  280,  282;  Cropsey  v.  McKinney,  30  Barb.  47; 
McCartee  v.  Camel,  1  Barb.  Ch.  455,  464.  He  decides  the  ques- 
tion as  to  his  right  to  remarry  for  himself,  without  application 
to  any  court  or  public  authority.  The  whole  responsibility  rests 
upon  him.  He  cannot  shut  his  eyes  and  ears,  and  justify  a  sec- 
ond marriage,  because  for  five  years  he  did  not  hear  of  his  wife. 
Did  he  try  to  hear  of  her?  Did  he  honestly  believe  she  was  dead? 
Did  he  make  inquiry?  Were  the  circumstances  such  that  a  rea- 
sonable man,  honestly  desiring  to  learn  the  truth,  would  have 
made  inquiry?  Was  he  excused  from  inquiring  by  a  false  report 
of  her  death? 

Questions  of  this  character  are  involved  in  the  ultimate  ques- 
tion of  good  faith,  which  is  necessarily  for  the  jury,  as  it  /de- 
pends upon  the  inferences  to  be  drawn  from  a  great  many  circum- 
stances. In  this  case  it  was  their  duty  to  determine  whether  Jer- 
mann,  in  deci.ding  that  he  had  the  right,  relying  upon  the  statute, 
to  marry  again,  acted  as  a  reasonable  man,  desiring  to  act  in  good 
faith,  would  have  acted  under  the  same  circumstances.  Whether 
he  relied  upon  his  supposed  divorce,  or  upon  the  report  that  his 
wife  was  dead,  instead  of  upon  the  statute,  was  for  the  jury  to 
say.  They  were  also  to  consider  his  opportunity  for  making  in- 
quiries, and  the  effect  of  his  omission  to  do  so.  T^ie  facets  jsjaiz 
janted.  their  conclusion  that  he  did  not  act  in  good  faith,  and  hence 
that  his  marriage  to  the  plaintiff  was  void.     *     *     ♦ 

'The  judgment  should  be  affirmed.^^ 

16  See,  also,  In  re  Fitzglbbons*  Estate,  162  Mich.  416,  127  N.  W.  313  (1910). 


CONFLICT   OF   LAWS  So 


VIII.  Conflict  of  Laws*' 


Ex  parte  CHACE. 

(Supreme  Court  of  Rhode   Island,   1904.     26  R.   I.  851,  68  Atl.  978,  69  L. 

R.  A.  493.) 

TiLLiNGHAST,  J.*'  This  IS  a  petition  for  a  writ  of  habeas  cor- 
pus, brought  by  Elizabeth  E.  Chace  in  behalf  of  her  husband, 
Henry  C.  Chace.  The  material  facts  in  the  case  are  these:  On 
the  23d  day  of  May,  1899,  Andrew  D.  Wilson  was  appointed 
guardian  of  the  person  and  estate  of  said  Henry  C.  Chace,  a  person 
of  full  age,  under  the  provisions  of  Gen.  Laws  1896,  c.  196,  §  7, 
on  the  ground  that,  from  want  of  discretion  in  managing  his  es- 
tate, he  was  likely  to  bring  himself  to  want.  Subsequently,  on 
the  20th  of  November,  1902,  Mr.  Chace  married  his  present  wife. 
The  marriage  was  solemnized  in  Massachusetts,  although  both 
of  the  parties  were  domiciled  in  Rhode  Island,  and  it  was  entered 
into  by  Mr.  Chace  without  obtaining  the  written  consent  of  his 
guardian,  which  is  made  one  of  the  requisites  for  obtaining  a  mar- 
riage license  in  this  state,  under  Pub.  Laws  1898-99,  p.  49,  c.  549, 
§  11.  Soon  after  the  marriage,  Mr.  and  Mrs.  Chace  returned  to 
this  state,  and  lived  together  as  husband  and  wife  for  some  months, 
until  some  time  last  August,  when  the  guardian  aforesaid  removed 
Mr.  Chace  from  his  home,  against  his  protest  and  that  of  the  pe- 
titioner. The  petitioner  avers  that  the  respondent  guardian  there- 
upon imprisoned  Mr.  Chace,  and  is  now  unlawfully  restraining 
him  of  his  liberty  at  No.  9  Lemon  street,  Providence;  that  he  is 
deprived  of  the  companionship,  assistance,  and  care  of  his  wife, 
which  he  desires ;  that  he  is  not  permitted  to  have  social  inter- 
course with  her,  save  in  the  presence  of  his  guardian ;  and  that 
he  is  being  treated  in  a  manner  inconsistent  with  the  relation  of 
guardian  and  ward. 

In  determining  whether  the  petitioner  is  entitled  to  the  relief 
she  prays  for,  the  first  question  calling  for  decision  is  whether 
she  was  lawfully  married  to  Mr.  Chace,  for,  if  not,  she  shows  no 
standing  to  petition  in  his  behalf  as  his  wife.  It  is  argued  by  the 
counsel  for  the  guardian  that  the  marriage  is  invalid,  and  that  the 
petitioner  never  became  the  wife  of  Mr.  Chace.  The  reasons  ad- 
vanced are  (1)  that  by  our  statute,  cited  above,  a  ward  is  rendered 
unable  to  obtain  a  marriage  license  without  the  consent  of  his 
guardian,  and  that  no  such  consent  was  given  by  the  respondent ; 

17  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  i:d.) 
§  30. 

IS  Part  of  the  opinion  is  omitted. 


36  MARRIAGE 

(2)  that  by  the  provisions  of  Gen.  Laws  1896,  c.  196,  §  16,  "all 
contracts,  bargains,  and  conveyances  made  by  any  person  under 
guardianship  shall  be  utterly  void" ;  (3)  that  these  provisions 
show  that  it  is  the  policy  of  our  law  to  deny  any  validity  to  any 
kind  of  a  contract  which  a  ward  attempts  to  make,  and  that  there- 
fore, although  the  marriage  took  place  in  Massachusetts,  and  may 
have  fulfilled  the  requirements  of  Massachusetts  law,  it  will  not 
be  recognized  in  this  state. 

We  do  not  think  that  any  of  these  arguments  are  sound.  As  to 
the  first  two,  we  think  it  is  clear  that  the  statutes  relied  upon  can 
have  no  direct  application  to  this  marriage,  for  it  was  celebrated 
in  another  state,  and  under  the  provisions  of  other  laws. 

The  third  argument,  however,  requires  more  consideration.  It 
is  said  by  counsel  for  the  guardian  that  "marriage,  in  evasion  of 
the  laws  of  the  domicile,  and  contrary  to  the  public  policy  or  laws 
of  the  domicile,  .will  not  be  recognized  as  valid."  But  it  must  be 
noticed,  in  the  first  place,  that  it  nowhere  appears,  either  in  the 
pleadings  or  proof,  that  the  marriage  involved  here  was  entered 
into  in  evasion  of  the  laws  of  the  domicile,  and  contrary  to  the 
public  policy  thereof.  For  aught  that  appears,  the  parties  may 
have  entered  into  this  contract  of  marriage  in  the  most  perfect 
good  faith,  and  without  any  intention  of  evading  the  laws  of  Rhode 
Island.  And  as  is  said  by  ]\Ir.  Bishop  in  the  first  volume  of  his 
work  on  Marriage,  Divorce  &  Separation,  §§  77,  836:  "Each  par- 
ticular instance  of  what  is  meant  for  marriage  has  the  aid  of  all 
the  presumptions,  both  of  law  and  fact,  and  equally  whether  the 
marriage  was  domestic  or  foreign." 

Furthermore,  it  is  not  clear  that,  even  if  the  marriage  had  been 
solemnized  in  this  state,  it  would  have  been  void.  Pub.  Laws 
1898-99,  p.  49,  c.  549,  §  11,  merely  provides  that  no  marriage  license 
shall  issue  to  a  person  under  guardianship  without  the -written  con- 
sent of  the  guardian ;  but  it  by  no  means  necessarily  follows  that 
a  marriage  procured  without  first  obtaining  such  license  would  be 
void,  although  the  official  or  other  person  who  performed  the  cere- 
mony might  be  liable  to  punishment  under  section  19  of  the  same 
chapter.  See  Parton  v.  Hervey,  1  Gray  (Mass.)  119,  121.  For 
while  pur  statutes  prescribe  certain  formalities  and  requirements 
in  connection  with  the  entering  into  the  marriage  relation,  it  is  to 
be  carefully  borne  in  mind  that  they  nowhere  declare  that  the  fail- 
ure to  observe  any  or  all  of  said  formalities  or  requirements  shall 
have  the  effect  to  render  a  marriage  void. 

Again,  although  Gen.  Laws  1896,  c.  196,  §  16,  provides  that  all 
contracts  made  by  a  ward  shall  be  void,  it  is  at  least  very  ques- 
tionable whether  the  Legislature  intended  that  section  to  refer  to 
the  contract  of  marriage.  Indeed,  the  words  of  the  section  re- 
ferring to  bargains  and  conveyances  would  clearly  seem  to  show 
that  it  was  only  intended  to  affect  contracts  relating  to  property. 


CONFLICT   OF   LAWS  87 

Certainly  the  provision  is  not  of  universal  application,  for,  under 
Pub.  Laws  1898-99,  p.  49,  c.  549,  §  11,  there  must  be  an  implied 
exception  in  the  case  of  a  marriage  contract  to  which  the  guardian 
consents  in  writing. 

Upon  the  questions  of  interpretation  thus  raised,  however,  we 
refrain  from  expressing  any  opinion,  as  we  think  that,  even  assum- 
ing that  the  marriage  would  have  been  void  in  this  state,  yet  as, 
so  far  as  appears,  it  was  lawfully  celebrated  in  Massachusetts,  it 
must  be  considered  valid  here.  We  are  aware  that  the  authorities 
are  not  entirely  uniform  upon  this  point,  now  for  the  first  time 
presented  in  Rhode  Island ;  but  the  general  principle,  as  we  gather 
it  from  text-writers  and  decisions,  both  English  and  American,  is 
that  the  capacity  or  incapacity  to  marry  depends  on  the  law  of  the 
place  where  the  marriage  is  celebrated,  and  not  on  that  of  the 
domicile  of  the  parties.  Sto.  Conf.  Law  (8th  Ed.)  §  89.  See  Id.  §§ 
113,  121,  123a,  123b;  Bish.  Mar.,  Div.  &  Sep.  vol.  1,  §  843,  and 
cases  cited;  Putnam  v.  Putnam,  8  Pick.  (Mass.)  433;  Inhabit- 
ants of  West  Cambridge  v.  Inhabitants  of  Lexington,  1  Pick. 
(Mass.)  506,  11  Am.  Dec.  231;  Van  Voorhis  v.  Brintnall,  86  N. 
Y.  18,  40  Am.  Rep.  505.  In  Medway  v.  Needham,  16  Mass.  157, 
8  Am.  Dec.  131,  a  statute  made  a  marriage  between  a  negro  or 
mulatto  and  a  white  person  void.  A  couple,  one  of  whom  was 
a  mulatto  and  the  other  white,  in  order  to  evade  the  statute,  came 
into  Rhode  Island,  where  such  connections  were  allowed,  were 
there  married,  and  immediately  returned.  And  the  marriage,  being 
good  in  Rhode  Island,  was  held  to  be  good  in  Massachusetts. 

The  reasoning  upon  which  these  cases  proceed  is  well  stated  by 
Sir  Edward  Simpson  in  Scrimshire  v.  Scrimshire,  2  Hagg.  Cons. 
395.  He  says  on  page  417:  "All  nations  allow  marriage  con- 
tracts. They  are  'juris  gentium,'  and  the  subjects  of  all  nations 
are  equally  concerned  in  them;  and  from  the  infinite  mischief  and 
confusion  that  must  necessarily  arise  to  the  subjects  of  all  nations 
with  respect  to  legitimacy,  successions,  and  other  rights,  if  the 
respective  laws  of  different  countries  were  only  to  be  obsen-ed  as 
to  marriages  contracted  by  the  subjects  of  those  countries  abroad, 
all  nations  have  consented,  or  must  be  presumed  to  consent,  for 
the  common  benefit  and  advantage,  that  such  marriages  should 
be  good,  or  not  according  to  the  laws  of  the  coimtry  where  they 
are  made.  *  *  *  By  observing  this  law  no  inconvenience  can 
arise,  but  infinite  mischief  will  ensue  if  it  is  not." 

The  counsel  for  the  guardian,  however,  cites  several  cases  which 
at  first  sight  seem  to  support  the  position  that  marriage  in  evasion 
of  the  laws  of  the  domicile  is  invalid.  Thus  in  Estate  of  Stull, 
183  Pa.  625,  39  Atl.  16,  39  L.  R.  A.  539,  63  Am.  St.  Rep.  776,  and 
Pennegar  &  Haney  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R. 
A.  703,  10  Am.  St.  Rep.  648,  a  statute  forbade  any  person  from 
whom  a  divorce  was  obtained  on  the  ground  of  adultery  to  re- 


38  MARRIAGE 

marry.  In  both  cases  a  party  forbidden  to  marry  went  into  an- 
other state  and  remarried.  The  second  marriage  in  both  cases 
was  held  invalid  in  the  state  where  the  party  was  domiciled.  In 
Dupre  V.  Boulard's  Ex'r,  10  La.  Ann.  411,  a  statute  forbade  the 
intermarriage  of  blacks  and  whites,  and  it  was  held  that  any  such 
marriage,  although  valid  where  performed,  would  not  be  recog- 
nized in  Louisiana.  To  the  same  effect  are  State  v.  Kennedy,  76 
N.  C.  251,  22  Am.  Rep.  683,  and  Kinney  v.  Com.,  30  Grat.  (Va.) 
858,  32  Am.  Rep.  690.  And  in  Brook  v.  Brook,  9  H.  L.  Cas.  145, 
*193,  where  a  statute  declared  that  a  marriage  with  a  deceased 
wife's  sister  should  be  invalid,  it  was  held  that  such  a  marriage 
entered  into  between  British  subjects  in  a  country  where  the  mar- 
riage was  not  forbidden  was  absolutely  void  in  England. 

We  consider  these  cases  inconclusive.  Most  of  them,  if  not  all, 
fall  within  a  well-recognized  exception  to  the  general  rule  laid 
down  above,  namely,  that  if  a  marriage  is  odious  by  the  common 
consent  of  nations,  or  if  its  influence  is  thought  dangerous  to  the 
fabric  of  society,  so  that  it  is  strongly  against  the  public  policy  of 
the  jurisdiction,  it  will  not  be  recognized  there,  even  though  valid 
where  it  was  solemnized.  Thus  a  polygamous  marriage,  although 
valid  and  binding  in  the  country  where  it  was  contracted,  would 
probably  be  denied  validity  in  all  countries  where  such  unions  are 
prohibited.  See  In  re  Bethell,  38  Ch.  D.  220.  Probably  the  rule 
would  be  the  same  in  case  of  an  incestuous  marriage,  although 
valid  in  the  place  where  contracted.  See  Bishop,  supra,  §  858  et 
seq.;  Com.  v.  Lane,  113  Mass.  458,  463,  18  Am.  Rep.  509.  The 
cases  cited  from  Louisiana,  North  Carolina,  and  Virginia  may  be 
explained,  then,  on  the  ground  that  the  tendency  of  such  unions 
in  those  states  was  considered  destructive  of  society;  and  their 
apparent  conflict  with  Medway  v.  Needham  rests,  not  upon  any 
conflict  of  opinion  regarding  the  general  principle  governing  for- 
eign marriages,  but  only  upon  the  dift'erent  conceptions  of  the 
courts  regarding  the  importance  of  the  public  policy  forbidding 
such  marriages. 

The  first  two  cases  cited  by  counsel  for  the  respondent  guard- 
ian are  harder  to  distinguish,  although  we  think  that  here,  again, 
the  difference  in  the  result  is  attributable  to  the  same  difference 
in  the  conception  of  the  public  policy  regarding  such  marriages. 
But  if  the  cases  really  are  in  conflict,  we  believe  that  the  current 
of  authority  is  in  favor  of  the  principle  already  enunciated.  It  is 
true  that  in  the  important  case  of  Brook  v.  Brook,  supra,  decided 
by  the  House  of  Lords,  a  contrary  position  was  taken,  and  the 
Massachusetts  cases  were  expressly  disapproved.  That  case,  how- 
ever, although  of  great  weight,  has  been  considerably  criticised, 
and  is  believed  to  be  contrary  to  the  weight  of  American  author- 
ity.    For  a  learned  criticism  of  the  case,  see  the  opinion  of  Gray, 


CONFLICT   OF   LAWS  39 

C.  J.,  in  Com.  v.  Lane,  113  Mass.  467  et  seq.,  18  Am.  Rep.  509. 
See,  also,  Bishop,  supra,  §  827. 

The  case  of  Andrews  v.  Andrews,  188  U.  S.  14,  23  Sup.  Ct. 
237,  47  L.  Ed.  366,  has  no  bearing  upon  the  question  at  issue.  In 
that  case  the  only  question  was  whether  the  court  of  Massachu- 
setts constitutionally  could  refuse  to  recognize  a  divorce  granted 
by  the  court  of  South  Dakota,  in  view  of  a  Massachusetts  statute 
providing  that  a  divorce  obtained  in  fraud  of  the  laws  of  the  domi- 
cile should  be  invalid;  and  it  was  held  that,  as  the  divorce  was 
granted  to  one  who  had  never  obtained  a  bona  fide  domicile,  the 
court  of  South  Dakota  never  acquired  jurisdiction,  and  hence  the 
due  faith  and  credit  clause  of  the  constitution  did  not  require  the 
enforcement  of  the  decree  in  Massachusetts  against  the  public 
policy  of  that  state  as  expressed  in  its  statutes.  It  is  to  be  no- 
ticed that  both  the  first  and  second  marriages  involved  in  that  case 
took  place  in  Massachusetts.  And  as  to  the  invalidity  of  the  di- 
vorce, it  is  clear  thpt  different  considerations  apply  to  the  deter- 
mination of  the  validity  of  divorces  than  to  the  validity  of  mar- 
riages procured  in  evasion  of  the  law  of  the  domicile.  Bishop, 
supra,  §§  836,  837. 

Coming  now  to  the  case  in  hand,  it  requires  no  argument  to 
show  that,  even  if  the  marriage  might  have  been  void  if  solem- 
nized in  this  state,  it  is  nevertheless  not  such  a  union  that  it  can 
in  any  sense  be  considered  so  subversive  of  good  morals,  or  so 
threatening  to  the  fabric  of  society,  as  to  fall  within  the  exception 
to  the  general 'rule  regarding  foreign  marriages.  In  other  words, 
if  valid  in  Massachusetts,  it  is  equally  valid  here.  As  to  its  va- 
lidity in  Massachusetts,  no  authorities  were  cited  by  counsel,  and 
we  have  not  succeeded  in  discovering  any  Massachusetts  statute 
or  decision  which  would  tend  to  show  that  the  marriage  is  not 
valid  there.  Indeed,  the  only  authorities  we  have  found  which 
seem  to  bear  upon  the  point  look  the  other  way. 

In  Parton  v.  Hervey,  supra,  the  facts  were  in  some  respects  sim- 
ilar to  those  in  the  case  at  bar.  The  petitioner  had  married  a  fe- 
male infant  of  the  age  of  13  years,  with  the  free  assent  of  said 
infant,  but  without  the  knowledge  or  consent  of  her  mother,  who 
was  her  only  surviving  parent.  The  latter,  claiming  that  the  mar- 
riage was  invalid  without  her  consent,  locked  her  daughter  up. 
and  refused  to  allow  her  husband  to  have  the  custody  of  her  per- 
son. The  petitioner  was  allowed  a  writ  of  habeas  corpus  against 
the  mother.  The  court  say  on  page  122:  "But  in  the  absence  of 
any  provision  declaring  marriages  not  celebrated  in  a  prescribed 
manner,  or  between  parties  of  certain  ages,  absolutely  void,  it  is 
held  that  all  marriages  regularly  made  according  to  the  common 
law  are  valid  and  binding,  although  had  in  violation  of  the  specific 
regulations  imposed  by  statute." 


40  MARRIAGE 

And  in  Inhabitants  of  Milford  v.  Inhabitants  of  Worcester,  7 
Mass.  48,  54,  55,  Parsons,  C.  J.,  said:  "When  a  justice  or  minister 
shall  solemnize  a  marriage  between  parties  who  may  lawfully 
marry,  although  without  publication  of  the  banns  of  marriage,  and 
without  the  consent  of  the  parents  or  guardians,  such  marriage 
would  unquestionably  be  lawful,  although  the  officer  would  incur 
the  penalty  of  fifty  pounds  for  a  breach  of  his  duty."  See  Par. 
Cont.  (9th  Ed.)  vol.  2,  p.  93. 

In  the  absence,  then,  of  any  showing  that  Mr.  Chace  was  either 
an  idiot  or  lunatic  at  the  time  of  the  marriage,  we  are  of  opinion 
that  the  marriage  in  Massachusetts  was  valid. 

It  is  argued  by  counsel  for  the  petitioner  that,  as  there  was  at 
teast  the  form  of  a  marriage  in  this  case,  it  can  not  be  collaterally 
attacked,  but  must,  for  the  purposes  of  this  proceeding,  be  consid- 
ered valid  and  binding.  As  the  respondent's  counsel  took  no  no- 
tice of  this  point  in  his  brief,  however,  and  relies  chiefly  upon  the 
invalidity  of  the  marriage,  we  prefer  to  express  no  opinion  upon 
that  question,  but  to  decide  this  branch  of  the  case  upon  the  ground 
selected  by  the  respondent  for  his  defense.     *     *     * 

The  writ  will  issue  as  prayed. 


EIGHTS  AND  DUTIES  INCIDENT  TO  COVERTORE  IN  GENERAL  41 


RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN 

GENERAL 

I.  Right  to  Determine  Family  Domicile  * 


PRICE  V.   PRICE. 
(Supreme  Court  of  Nebraska,  1906.     75  Neb.  552,  106  N.  W.  657.) 

Commissioners'  opinion.  Action  by  Bellizora  Price  against  Dan- 
iel E.  Price.  There  was  judgment  for  defendant,  and  plaintiff  ap- 
peals. 

Oldham,  C.^  This  was  an  action  for  support  and  maintenance 
instituted  by  the  plaintiff  wife  against  the  defendant  husband.  The 
petition  alleges  the  marriage  between  plaintiff  and  defendant  in 
the  city  of  Grand  Island,  Neb.,  April  12,  1900;  that  after  the  mar- 
riage plaintiff  and  defendant  lived  together  as  husband  and  wife  in 
the  village  of  Phillips,  Hamilton  county.  Neb.,  until  the  latter  part 
of  August,  1900,  when  by  mutual  agreement  plaintiff  removed  to 
the  city  of  Grand  Island  with  her  children  by  a  former  marriage; 
that  after  plaintiff's  removal  to  Grand  Island  defendant  continued 
to  visit  and  cohabit  with  her  as  her  husband  until  the  month  of 
June,  1901,  when  defendant  abandoned  the  plaintiff  and  refused 
and  neglected  to  further  provide  for  her  support  and  maintenance. 
The  petition  prayed  for  a  reasonable  allowance  from  defendant's 
income  for  plaintiff's  support.  The  answer  admitted  the  marriage 
and  denied  each  and  every  other  allegation  contained  in  the  plain- 
tiff's petition,  and  by  way  of  cross-bill  asked  for  a  divorce  from 
the  plaintiff  on  the  grounds  of  willful  abandonment  without  just 
cause  for  more  than  two  years.  On  issues  thus  joined  there  was 
a  trial  to  the  court  and  a  judgment  dismissing  both  the  petition 
of  the  plaintiff  and  the  defendant's  cross-bill  and  taxing  each  of 
the  parties  with  their  own  costs.  To  reverse  this  judgment  plain- 
tiff has  appealed  to  this  court. 

There  is  very  little  conflicting  testimony  in  the  record ;  the  con- 
test mainly  depending  upon  the  presumptions  arising  from  undis- 
puted or  clearly  established  facts,  which  may  be  briefly  summa- 
rized as  follows:  At  the  time  of  the  marriage,  plaintiff  was  a 
widow  and  the  mother  of  four  children  by  her  former  marriage ; 
the  oldest  one  being  a  son  about  18  years  of  age,  and  the  younger 
ones  being  daughters,  ranging  in  age  from  9  to  16  years.     Defend- 

1  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §  36. 

2  Part  of  the  opinion  is  omitted. 


42  EIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

ant  was  a  middle-aged  man,  a  widower,  who  was  the  father  of 
three  children,  all  girls,  ranging  in  age  from  7  to  13  years.  Each 
of  the  parties  were  of  high  moral  and  social  standing.  The  defend- 
ant husband  resided  in  the  village  of  Phillips,  about  nine  miles 
distant  from  the  city  of  Grand  Island,  where  the  plaintiff  wife 
resided  at  and  before  the  marriage.  After  the  marriage  plaintiff 
and  her  three  younger  children  resided  with  defendant  and  his  chil- 
dren in  the  village  of  Phillips  until  the  latter  part  of  August,  1900. 
Plaintiff,  at  the  time  of  the  marriage,  was  the  owner  of  a  home 
in  Grand  Island  of  the  value  of  about  $800,  and  also  had  $1,000 
loaned  at  interest,  which  she  had  received  from  her  first  husband. 

It  fairly  appears  from  the  record  that,  by  mutual  agreement 
between  the  husband  and  wife,  the  wife  returned  with  her  chil- 
dren to  her  home  in  Grand  Island  for  the  purpose  of  sending  them 
to  school  there  during  the  year  1900-01.  While  there  is  some  sug- 
gestion in  the  record  that  this  arrangement  was  without  the  ap- 
proval of  the  husband,  yet  his  conduct  toward  plaintiff  after  her 
removal  to  Grand  Island  shows  that  he  acquiesced  in  her  conduct, 
for  he  testifies  that  he  visited  her  from  time  to  time  at  her  home 
in  Grand  Island  and  cohabited  with  her  at  the  time  of  such  visits 
and  contributed  small  sums  of  money  for  her  support  during  the 
school  year  of  1900-01.  It  is  fairly  suggested  by  the  evidence  that 
there  existed  some  dissatisfaction  between  plaintiff  and  defendant 
during  their  residence  in  Phillips,  on  account  of  the  interference 
of  relatives  of  the  two  families  of  children  in  the  management  and 
government  of  the  children. 

When  the  school  year  had  ended,  defendant  wrote  to  plaintiff, 
stating  his  inability  to  maintain  the  two  families  in  the  two  places, 
and  inquired  her  intention  as  to  returning  to  live  with  him  at  Phil- 
lips. While  the  oral  testimony  shows  that  plaintiff  had  objected 
to  going  back  to  Phillips  to  live  with  defendant,  yet  she  answered 
his  letter,  saying  that  she  would  return  to  live  with  defendant' 
at  Phillips  when  he  provided  a  home  there  for  her.  Defendant 
owned  no  real  estate  and  very  little  personal  property  at  that  time 
and  relied  on  renting  property  to  provide  a  home.  He  answered 
her  letter  telling  plaintiff,  in  substance,  to  inform  him  when  she 
intended  to  come  to  Phillips,  that  he  might  prepare  for  her,  and 
suggested  that  she  should  help  furnish  the  home  and  contribute 
to  the  support  of  her  own  children,  if  she  should  bring  them  with 
her. 

Here  follows  the  only  material  conflict  in  the  testimony.  Plain- 
tiff claims  that  she  answered  this  letter  by  a  note  asking  him  to 
come  to  see  her  to  arrange  for  her  return  to  Phillips,  and  that  in 
response  to  this  note  defendant  came  to  Grand  Island  and  sug- 
gested to  her  that  they  could  just  as  well  continue  to  live  apart, 
as  they  were,  for  the  next  three  or  four  years,  but  that,  if  in  the 


RIGHT   TO    DETERMINE    FAMILY    DOMICILE  43 

meantime  she  wanted  to  come  to  Phillips  to  live,  he  might  rent 
a  house  there.  Defendant  denies  receiving  this  note,  and  denies 
the  visit  and  conversation  testified  to  by  the  wife.  After  this,  de- 
fendant ceased  corresponding  with  his  wife  and  has  never  pro- 
vided anything  for  her  support  and  maintenance.  In  the  following 
December  defendant  went  to  the  city  of  Washington  as  a  tem- 
porary secretary  of  Congressman  Stark,  and  remained  there  in 
that  capacity  until  the  following  April.  During  this  time  plaintiff 
wrote  several  communications  to  defendant  offering  to  go  and  live 
with  him  at  Washington,  and  later,  when  he  had  returned,  she 
offered  to  live  with  him  at  Aurora,  Neb.  But  defendant  made  no 
response  to  any  of  these  communications  and  never  again  went  to 
visit  his  wife. 

We  think  there  are  certain  elementary  principles  that  should 
govern  the  judgment  and  finding  in  this  case.  The  first  is  that  it 
is  the  right  and  privilege  of  the  husband  to  fix  in  good  faith  a 
domicile  for  himself  and  wife.  Second,  it  is  the  duty  of  the  wife 
to  follow  her  husband  to  such  domicile  as  he  may  provide  in  good 
faith  and  there  to  live  and  cohabit  with  him  as  his  wife.  It  is 
also  the  primary  duty  of  the  husband  to  provide  for  the  reason- 
able support  and  maintenance  of  his  wife  according  to  his  rank, 
standing,  and  financial  ability,  when  she  accompanies  him  to  the 
domicile  which  he  has  selected.  The  right  of  the  wife  to  such 
reasonable  support  and  maintenance  can  be  defeated  only  when 
she  willfully  and  without  just  cause  either  abandons  the  domicile 
of  the  husband,  or  commits  some  overt  act  inconsistent  with  her 
duty  as  a  wife.  The  law  presumes  that  a  man  does  not  intend 
to  abandon  his  family,  in  the  absence  of  cogent  proof  to  the  con- 
trary (Jennison  v.  Hapgood,  10  Pick.  [Mass.]  99),  and  the  same 
rule  applies  with  reference  to  the  wife. 

Now  the  only  way  that  plaintiff  could  be  defeated  in  her  claim 
for  reasonable  support  and  maintenance  would  be  by  a  finding  of 
fact  that  she  had  voluntarily  and  intentionally  and  without  good 
cause  abandoned  the  domicile  of  her  husband,  which  he  had  pro- 
vided for  her.  From  the  evidence  in  this  case,  we  are  unable  to 
find  this  fact.  Plaintiff  went  to  Grand  Island  with  the  consent 
and  acquiescence  of  her  husband.  In  every  communication  from 
her  to  the  husband  she  has  expressed  a  willingness  to  live  with 
him  whenever  and  wherever  he  might  provide  a  home,  although 
it  does  appear  in  the  testimony  that  she  had  expressed  a  desire 
that  the  home  should  be  at  some  other  place  than  the  village  of 
Phillips.  While  defendant  suggested  in  his  communication  to  his 
wife  an  intention  to  procure  a  home  for  her,  yet  the  evidence  fails 
to  show  that  he  ever  did  so.  We  are  therefore  impressed  with  the 
conclusion  that  plaintiff  has  never  done  anything  to  defeat  her 
right    to    a    claim    on    the    defendant    for    reasonable    support    and 


44  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL        , 

maintenance   according  to  his   earning  capacity  and  financial   hold- 

rye  'I*  ^  ^ 

Judgment  reversed.' 


mgs 


II.  Torts  of  Married  Women  * 


NORRIS  V.  CORKILL. 
(Supreme  Court  of  Kansas,  1884.    32  Kan.  409,  4  Pac.  862,  49  Ata.  Rep.  489.) 

.^ction  by  Lavina  Norris  against  Marsha  Corkill  and  T.  D.  Cork- 
ill — who  are  husband  and  wife — for  damages  for  the  speaking  of 
certain  slanderous  words  by  Marsha  Corkill,  wife  of  T.  D,  Corkill, 
of.  the  plaintiff,  Lavina  Norris.  The  petition  alleged  that  the  de- 
fendants were  husband  and  wife,  and  that  the  slanderous  words 
were  spoken  by  the  wife,  Marsha  Corkill,  of  the  plaintiff,  Lavina 
Norris.  The  defendant  T.  D.  Corkill  demurred  to  the  petition  as 
not  stating  facts  sufficient  to  constitute  a  cause  of  action  against 
Kim.  The  trial  court  sustained  the  demurrer  and  dismissed  the 
case  as  to  T.  D.  Corkill,  and  the  plaintiff  brings  error. 

HoRTON,  C.  J.  The  question  presented  in  this  case  is  whethex 
the  husband  is  liable  for  the  slanderous  words  spoken  by  his  wife 
when  he  is  not  present,  and  in  which  he  in  no  manner  participates. 
The^rule  of  the  common  law  makes  the  husband  liable  for  the 
torts  of  his  wife  committed  during  coverture.  The  reason  assigned 
for  this  liability  is  that  the  husband  is  entitled  to  the  rents  and 
profits  of  the  wife's  real  estate  during  coverture,  and  the  abso- 
lute dominion  over  her  personal  property  in  possession.  Another 
ground  of  this  liability  at  common  law,  sometimes  given,  is  that 
the  wife  by  her  marriage  is  entirely  deprived  of  the  use  and  dis- 
posal of  her  property,  and  can  acquire  none  by  her  industry ;  that 
her  person,  labor,  and  earnings  belong  unqualifiedly  to  the  hus- 
band. Reeves,  Dom.  Rel.  3;  Tyler,  Inf.  &  Cov.  §  233.  Again, 
the  husband,  also,  by  common  law  might  give  the  wife  moderate 
correction;  for,  as  he  was  to  answer  for  her  misbehavior,  the  law 
thought  it  reasonable  to  intrust  him  with  this  power  of  restrain- 
ing her  by  domestic  chastisement  in  the  same  moderation  that 
a  man  is  allowed  to  correct  his  apprentices  or  children,  for  whom 
the  master  or  parent  is  also  liable  in  some  cases  to  answer.  1  Bl. 
Comm.  (Wendell's  Ed.)  444,  445. 

3  The  wife  may  under  certain  circumstances  (as  for  purposes  of  divorce 
when  husband  has  been  guilty  of  misconduct)  acquire  a  new  domicile.  Ather- 
ton  V.  Atherton,  181  U.  S.  16G,  21  Sup.  Ct.  544,  45  L.  Ed.  794  (1901). 

4  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  ReL^ol  Ed.)  §§ 
39-42. 


TORTS   OF   MARRIED   WOMEN  45 

Under  the  provisions  of  our  statute,  the  reasons  assigned  for 
the  liability  of  the  husband  for  the  torts  of  his  wife  no  longer 
hold  good,  and  therefore,  in  our  opinion,  under  the  changes  made 
by  the  statute,  the  liability  no  longer  exists.  It  is  a  part  of  the 
common  law  that  where  the  reason  of  the  rule  fails,  the  rule  fails 
with  it.  At  common  law  the  husband  had  control  almost  absolute 
over  the  person  of  the  wife ;  he  was  entitled,  as  the  result  of  their 
marriage,  to  her  services,  and  consequently  to  her  earnings,  to 
her  goods  and  chattels;  had  the  right  to  reduce  her  choses  in  ac- 
tion to  possession  during  her  life;  could  collect  and  enjoy  the 
rents  and  profits  of  her  real  estate,  and  thus  had  dominion  over 
her  property  and  became  the  arbiter  of  her  future.  She  was  in 
a  condition  of  complete  dependence;  could  not  contract  in  her 
own  name;  was  bound  to  obey  him;  and  her  legal  existence  was 
merged  in  that  of  her  husband,  so  that  they  were  termed  and  re- 
garded as  one  person  in  law.  Martin  v.  Robson,  65  111.  129,  16 
Am.  Rep.  578;   Tyler,  Inf.  &  Cov.  c.  19,  §§  216-233. 

Under  the  statute,  "the  property,  real  and  personal,  which  any 
woman  in  this  state  may  own  at  the  time  of  her  marriage,  and 
the  rents,  issues,  profits,  or  proceeds  thereof,  and  any  real,  per- 
sonal, or  mixed  property  which  shall  come  to  her  by  descent,  de- 
vise, or  bequest,  or  the  gift  of  any  person  except  her  husband, 
shall  remain  her  sole  and  separate  property,  notwithstanding  her 
marriage,  and  not  be  subject  to  the  disposal  of  her  husband  or 
liable  for  his  debts."  Comp.  Laws  1879,  §  1,  c.  62.  Again,  "a  mar- 
ried woman,  while  the  marriage  relation  subsists,  may  bargain, 
sell,  and  convey  her  real  and  personal  property,  and  enter  into  any 
contract  with  reference  to  the  same,  in  the  same  manner,  to  the 
same  extent,  and  with  like  efifect  as  a  married  man  may  in  rela- 
tion to  his  real  and  personal  property."  Section  2,  c.  62.  Fur- 
ther, "any  married  woman  may  carry  on  any  trade  or  business, 
and  perform  any  labor  or  services,  on  her  sole  and  separate  ac- 
count, and  the  earnings  of  any  married  woman  from  her  trade, 
business,  labor,  or  services  shall  be  her  sole  and  separate  prop- 
erty, and  may  be  used  and  invested  by  her  in  her  own  name." 
Section  4,  c.  62.  In  addition,  section  3  of  said  chapter  provides 
that  a  woman  may,  while  married,  sue  and  be  sued  in  the  same 
manner  as  if  she  were  unmarried.  Therefore,  it  is  not  true,  under 
the  existing  statute,  that  the  wife,  by  her  marriage,  is  deprived 
of  the  use  and  disposal  of  her  property,  nor  is  she  prohibited  from 
acquiring  property  by  her  own  industry.  It  is  not  true,  under  the 
statute,  that  the  personal  property  of  the  wife  passes  to  the  hus- 
band; nor  is  he  entitled  to  the  rents  and  profits  of  her  real  estate 
during  coverture ;  nor  has  he  any  dominion  over  her  personal  prop- 
erty, her  labor,  or  her  earnings.  If  she  so  desires,  they  are  un- 
qualifiedly her  own.  and  he  cannot  interfere  with  them. 

Again,  in  this  state,  the  common-law  power  of  correction  of  the 


46  RJtGHTS  AND  DUTIES  INCIDENT  TO  COVERTUKE  IN  QENEBAL 

wife  by  the  husband  is  no  longer  tolerated.  Under  the  common 
law  the  married  woman's  legal  existence  was  almost  entirely  ig- 
nored. She  was  sunk  into  almost  absolute  nonentity,  and  rested 
in  almost  total  disability;  but  all  of  this  has  been  changed  by  the 
statute,  and  to-day,  in  our  state,  "her  brain  and  hands  and  tongue 
are  her  own,  and  she  should  alone  be  responsible  for  slanders  ut- 
tered by  herself."  Martin  v.  Robson,  supra.  We  think  the  pro- 
visions of  our  statute  change  the  common-law  rule,  and  thereby 
discharge  the  husband  from  liability  for  the  torts  of  the  wife  com- 
mitted when  he  is  not  present,  and  with  which  he  has  no  connec- 
tion. .The  wife  stands  upon  an  equality  in  this  state  in  all  res£ects_ 
with  the  husband.  She  is  alone  responsible  for  her  contracts,  and 
should  be  alone  responsible  for  her  acts.  We  have  examined  the 
various  authorities  conflicting  with  these  views,  but  owing  to  the 
provisions  of  our  statute  we  are  not  inclined  to  follow  them,  and 
therefore  think  it  unnecessary  to  refer  to  them. 

The  judgment  of  the  district  court  will  be  affirmed.' 


KELLAR  V.  JAMES. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1907.    63  W.  Va.  139,  59  S.  E. 

939,  14  L.  R,  A.  [N.  S.]  1003.) 

Action  by  Verna  Kellar  against  Nancy  E.  James  and  George 
M.  James  for  slander.  From  a  judgment  of  dismissal,  plaintiff 
brings  error. 

PoFFENBARGER,  J.  In  the  circuit  court  of  Tucker  county,  a  de- 
murrer was  sustained  to  the  declaration  of  Verna  Kellar,  alleging 
against  the  defendants,  Nancy  E.  James  and  George  McClellan 
James,  slander  and  defamation  of  the  character  of  the  plaintiff,  and 
to  the  consequent  judgment  of  dismissal  she  obtained  a  writ  of 
error. 

The  defendants  were  husband  and  wife,  and  the  declaration 
charges,  first,  the  utterance  of  slanderous  language  ^>_  the  hus- 
band^ in  the  presence^f  certain  persons  named  as  well  as  others ; 
"second,  the  utterance  of  the  same  language  by  the  wife  in  the  pres- 
ence of  certain  other  persons  named;  and,  third,  the  utterance; 
of  the  language  by  both  defendants,  in  pujsuance  of  a  conspiracy, 
previously  formed  between  them,  and  the  speaking  and  publica- 
tion of  the  false,  scandalous,  malicious,  defamatory,  and  insulting 
words,  by  collusion  and  conspiracy,  with  intent  to  defame  and 
disgrace  the  plaintiff  among  her  friends  and  neighbors  and  the 
citizens  of  the  state,  and  to  bring  into  disgrace  and  disrepute  her 
good  name,  fame,  and  character. 

5  See,  also,  Schuler  v.  Henry,  42  Colo.  367,  94  Pac.  360,  14  L.  R.  A.  (N.  S.) 

1009  (190S),  where  authorities  are  collected  and  discussed. 


TORTS   OF   MARRIED   WOMEN  47 

In  reply  to  the  view  that  the  declaration  sets  up  two  causes  of 
action,  one  against  the  husband  alone  for  his  wrongful  act,  and 
the  other  against  both  husband  and  wife  for  the  wrongful  act  of 
the  latter,  and  so  is  open  to  the  objection  of  misjoinder  of  actions, 
it  is  urged'  that  all  the  matters  alleged  constitute  one  cause  of  ac- 
tion, founded  upon  the  charge  of  conspiracy,  and  this  argument  is 
supplemented  by  the  contention  that  such  a  conspiracy  between 
the  husband  and  wife  may  now  exist  because  of  the  supposed 
change  in  the  status  of  the  wife,  wrought  by  our  married  women's 
statutes.  These  statutes,  very  similar  in  character  and  form  to 
those  adopted  in  other  states,  relate,  for  the  most  part,  to  the  sep- 
arate property  of  the  wife,  her  rights  and  powers  respecting  the 
same,  and  freedom  thereof  from  the  control  of  the  husband,  and 
liability  for  his  debts,  and  the  enlargement  of  the  rights  and  pow- 
ers of  married  women  respecting  contracts  and  enforcement  of  the 
same.  To  a  certain  extent,  they  also  free  the  husband  from  lia- 
bility for  the  debts  of  the  wife.  Though  not  in  exact  conformity 
with  the  terms  or  scope  of  similar  statutes  of  other  states,  the 
respects  in  which  our  statutes  differ  from  them  are  relatively 
slight  and  unimportant. 

The  primary  object  and  general  scope  thereof  are  the  same  as 
those  of  modern  married  women's  laws  in  other  jurisdictions.  In 
some  states  the  courts  have  exonerated  the  husband  from  liabil- 
ity for  the  torts  of  the  wife,  without  any  warrant  therefor  in  the 
letter  of  the  statute,  on  the  presumption  of  legislative  intent  to 
do  so,  arising  out  of  deprivation  of  the  husband  of  the  control  of 
the  wife's  property,  and  relief  of  the  same  from  liability  for  his 
debts.  These  statutes  are  construed,  in  the  jurisdictions  in  which 
such  effect  is  given  them,  as  if  they  had  declared  that  a  married 
woman  should  be  deemed  in  all  respects,  as  regards  her  power  to 
contract,  own,  control,  and  manage  property  and  liability  for  her 
acts  and  conduct,  wrongful  or  otherwise,  as  if  she  were  a  feme 
sole.  In  doing  so,  the  courts  admit  an  interpretation  which  goes 
far  beyond  the  letter  of  the  statute. 

They  set  aside  the  common  law  in  respect  to  matters  as  to  which 
the  statute  is  wholly  silent,  notwithstanding  the  rule  requiring 
strict  construction  of  all  statutes  in  derogation  of  the  common  law. 
Moreover,  they  assume  that  the  only  reason  for  the  husband's 
common-law  liability  for  the  wife's  torts  is  found  in  the  control 
which  that  law  gave  the  husband  over  her  property,  notwithstand- 
ing the  existence  of  other  common-law  principles  and  considera- 
tions which  may  reasonably  be  said  to  form,  at  least,  a  part  of  the 
ground  of  such  liability.  For  many  purposes,  the  wife's  existence 
was  deemed  by  that  law  to  have  been  merged  in  that  of  the  hus- 
band. She  had  no  separate  existence  in  law,  and  they  were  con- 
sidered one  person.  In  respect  to  the  commission  of  many  crimes, 
and  wrongs  not  amounting  to  crime,  done  by  the  wife  in  the  pres- 


48  EIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

ence  of  her  husband,  she  was  deemed  to  have  acted  under  his  coer- 
cion, and  was  not  liable  either  civilly  or  criminally.    21  Cyc.  1355. 

Our  statute  makes  no  reference  to  her  liability  or  that  of  the 
husband  for  her  wrongs.  This  branch  of  the  law  remains  wholly 
untouched  by  any  terms  of  the  statutes.  It  seems  to  us  that  the 
application  to  them  of  the  liberal  rule  of  construction  would  not 
carry  them  into  this  untouched  portion  of  the  domain  of  law  re- 
lating to  married  women  and  their  relations  to  their  husband  and 
third  parties.  The  liberal  rule  of  construction  only  requires  that 
a  statute  be  so  enforced  as  to  carry  into  effect  the  will  of  the 
Legislature  as  expressed  in  the  terms  thereof,  and  give,  not  stint- 
edly  or  niggardly,  but  freely  and  generously,  all  the  statute  pur- 
ports to  give.  This  stops  far  short  of  carrying  the  statute  to  pur- 
poses and  objects  entirely  beyond  those  mentioned  in  it. 

One  object  of  these  statutes  is  to  enable  a  married  woman  to 
have  the  absolute,  free,  and  unrestrained  control  of  her  property, 
and  power  to  make  contracts  respecting  it,  and  to  vindicate  her 
property  and  contract  rights  by  action  in  the  courts  of  the  state 
as  if  she  were  a  feme  sole.  For  the  accomplishment  of  these  pur- 
poses, the  statute  should  be  liberally  construed.  She  is  subjected, 
by  this  same  law,  to  the  reciprocal  right  extended  to  others  to 
sue  her  in  the  courts  as  if  she  were  a  feme  sole,  and,  for  the  ef- 
fectuation of  this  purpose,  the  statutes  should  be  liberally  con- 
strued. So,  in  respect  to  all  the  other  rights  and  liabilities  ex- 
pressly given  and  imposed  by  this  law.  The  evils  intended  to  be 
suppressed,  and  the  purposes  and  objects  to  be  promoted,  are  all 
mentioned  in  the  statutes,  and  the  rule  of  liberal  construction  re- 
quires no  more  than  that  they  shall  be  so  interpreted  and  applied 
as  to  suppress  the  named  evils,  and  effectuate  the  specified  pur- 
poses and  objects.  It  does  not  authorize  the  court  to  add  other 
supposed  evils,  purposes,  and  objects. 

By  the  decided  weight  of  authority,  these  statutes  are  held  not 
to  have  relieved  the  husband  from  his  common-law  liability  for 
the  wife's  torts,  as  has  been  well  said  by  Judge  Brannon  in  Gill 
V.  State,  39  W.  Va.  479,  20  S.  E.  568,  26  L.  R.  A.  655,  45  Am.  St. 
Rep.  928,  and  in  Withrow  v.  Smithson,  37  W.  Va.  761,  17  S.  E. 
316,  19  L.  R.  A.  762.  Though  these  expressions  of  opinion  may 
not  be  regarded  as  matters  of  decision,  their  reasoning  is  valu- 
able, and  they  show  that  the  weight  of  authority  is  against  the 
contention  set  up  in  the  brief  of  counsel  for  plaintiff  in  error.^  To 
the  authorities  there  cited  by  Judge  Brannon  in  support  of  his 
opinion,  we  add  the  following:  Henley  v.  Wilson,  137  Cal.  273, 
70  Pac.  21,  58  L.  R.  A.  941,  92  Am.  St.  Rep.  160;  Morgan  v.  Ken- 
nedy, 62  Minn.  348,  64  N.  W.  912,  30  L.  R.  A.  521,  54  Am.  St.  Rep. 
647;  Bruce  v.  Bombeck,  79  Mo.  App.  231;  Nichols- v.  Nichols, 
147  Mo.  387,  48  S.  W.  947;  Taylor  v.  Pullen,  152  Mo.  434,  53  S. 
W.  1086;   Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791;   Fow- 


TORTS   OP   MARRIED   WOMEN  49 

ler  V.  Chickester,  26  Ohio  St.  9;  Zeliff  v.  Jennings,  61  Tex.  458; 
McQueen  v.  Fulgham,  27  Tex.  463 ;  Seroka  v.  Kattenburg,  17  Q. 
B.  D.  177;  Bahin  v.  Hughes,  31  Ch.  D.  390. 

No  authority  need  be  cited  for  the  proposition  that  the  wife  is 
not  liable  for  the  slander  or  other  tort  of  the  husband.  The  only- 
qualification  of  this  general  rule  is  found  in  those  instances  in 
which  the  husband  acts  as  the  agent  of  the  wife  in  respect  to  her 
separate  property ;  and  this  is  only  an  apparent  exception,  for  there 
the  act  of  the  husband,  her  agent,  is,  in  law,  her  act.  By  the  com- 
mon law,  the  wife  could  not  be  a  trespasser  by  previous  or  sub- 
sequent consent  to  the  act  or  trespass  of  the  husband.  She  did 
not  become  liable  except  by  her  active,  actual  participation  in 
the  wrongful  act.  "A  married  woman  is  liable  for  torts  actually 
committed  by  her,  though  she  cannot  be  a  trespasser  by  prior  or 
subsequent  assent."  Chitty,  PI.  (11  Am.  Ed.)  76.  "And  where  sev- 
eral are  concerned,  they  may  be  jointly  sued,  whether  they  as- 
sented to  the  act  before  or  after  it  was  committed,  unless  the  party 
be  an  infant  or  a  feme  covert,  who,  we  have  seen,  cannot  be  sued 
in  respect  to  a  subsequent  assent."     Id.  80. 

This  doctrine  is  recognized  in  Ferguson  v.  Brooks,  67  Me.  251, 
in  the  following  terms:  "That  this  doctrine  is  still  properly  ap- 
plicable to  numerous  actions  of  tort  brought  against  married  wo- 
men, we  do  not  doubt.  We  should  be  inclined  to  say,  for  example, 
that  a  wife  ought  not  to  be  held  liable  for  the  tort  of  her  husband 
or  any  third  party,  in  which  she  does  not  participate  as  an  actor, 
by  reason  of  prior  or  subsequent  assent,  consent,  advice,  or  au- 
thority from  her,  in  a  case  where  she  is  not  in  any  contingency  to 
reap  a  profit,  or  her  separate  estate  a  benefit."  In  view  of  this 
principle  of  law,  the  allegation  of  conspiracy  amounts  to  mere  sur- 
plusage. 

It Js  utterly  impossible  that  the  wife  can  be  held  liable  for  the 
slander  uttered  by  her  husband  in  her  absence,  on  the  theory  that 
she  counseled,  advised,  or  directed  it,  or  assented  to  and  ratified 
it  after  it  was  done.  From  this  it  results  that  the  declaration  nec- 
essarily sets  up  t\vo  separate  and  distinct  causes  of  action,  one 
against  the  husband,  and  one  against  the  husband  and  wife.  As 
to  the  latter,  if  maintained,  judgment  would  go  against  both  (Gill 
V.  State,  39  W.  Va.  479,  20  S.  E.  568,  26  L.  R.  A.  655,  45  Am.  St. 
Rep.  928,  and  the  numerous  authorities  there  cited)  ;  and,  as  to 
the  former,  against  the  husband  alone.  To  allow  recovery  upon 
a  declaration  setting  up  both  of  these  causes  of  action  would  make 
the  wife  liable  for  the  husband's  tort,  contrary  to  law.  This  makes 
the  declaration  fatally  defective,  wherefore  the  court  properly  sus- 
tained the  demurrer,  and  dismissed  the  action,  instead  of  enter- 
ing a  mere  judgment  of  abatement  for  misjoinder  of  parties.  A 
misjoinder  of  counts  or  causes  of  action  is  fatal  to  the  declaration 
COOLEY  P.&  D.Rel. — 4 


50  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

on  demurrer.    Malsby  v.  Lanark  Co.,  55  W.  Va.  484,  47  S.  E.  358; 
Henderson  v.  Stringer,  6  Grat.  (Va.)   130.     This  obvious  and  in- 
evitable result  renders  it  unnecessary  to  discuss  the  numerous  other 
questions  of  law  adverted  to  in  the  argument. 
There  being  no  error,  the  j_udgment  w^ill  be  affirmed.' 


J 


III.  Torts  Against  Married  Women' 


SKOGLUND  V.  MINNEAPOLIS  ST.  RY.  CO. 

(Supreme  Court  of  Minnesota.  1891.     45  Minn.  330.  47  N.  W.  1071,  11  L.  R. 

A.  222,  22  Am.  St.  Rep.  733.) 

GiLFiLLAN,  C.  J.  The  plaintifif  and  his  wife,  while  riding  in  one 
of  defendant's  cars,  were  both  at  the  same  time  injured  by  the 
same  accident  or  act  of  negligence  of  defendant.  Plaintiff  brought 
an  action,  and  recovered  for  the  injury  to  himself.  He  brings  this 
action  alleging  the  negligence  of  the  defendant,  the  injury  to  his 
wife,  in  consequence  whereof  he  lost  her  services  and  society,  and 
was  put  to  expenses  for  physicians  and  medicines  and  the  care  of 
his  wife.  In  its  answer  the  defendant  alleged  the  former  action, 
and  recovery  by  plaintiff,  in  bar  of  this  action,  and  the  court  be- 
low held  it  a  bar,  and  ordered  judgment  for  defendant  on  the  plead- 
ings. This  appeal  is  from  an  order  denying  plaintiff's  motion  for 
a  new  trial. 

The  case  raises  the  question,  was  the  cause  of  action  in  the 
first  action  the  same  as  in  this?  Is  this  an  attempt  to  recover  dam- 
ages that  belonged  to  that  cause  of  action?  We  think  the  decision 
of  the  court  below  was  erroneous,  not  because  one  action  was  to 
recover  for  an  injury  to  what  are  termed  the  absolute  rights  of 
plaintiff,  and  the  other  for  injury  to  his  relative  rights,  or  rights 
he  possessed  by  reason  of  his  relation  to  his  wife,  but  because  his 
right  to  recover  in  this  case  will  depend  on  a  different  state  of 
facts  from  those  which  would  sustain  a  recovery  in  the  other  case. 
In  the  action  for  injury  to  himself  all  he  needed  to  show  in  order 
to  recover  nominal  damages  at  least,  was  the  negligence  of  the 
defendant,  and  the  consequent  injury  to  himself.  But  proof  of 
the  negligence  and  injury  to  the  wife  would  not  sustain  the  hus- 

6  Accord:  Morgan  v.  Kennedy,  62  Minn.  348,  64  N.  W.  912,  30  L.  R.  A. 
521,  54  Am.  St.  Rep.  647  (1895) ;  Jackson  v.  Williams,  92  Ark.  486,  123  S.  W 
751,  25  L.  R.  A.  (N.  S.)  840  (1909). 

7  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  44. 


TORTS   AGAINST   MARRIED   WOMEN  51 

band's  action  in  this  case.  The  cause  of  action  which  those  facts 
alone  show  belongs  to  the  wife.  Those  facts  go  to  make  up  the 
husband's  cause  of  action,  but  alone  they  are  not  enough.  In 
addition  to  them  there  must  exist  the  fact  that,  by  reason  of  the 
injury  so  caused,  he  has  been  deprived  of  her  society  or  services, 
or  has  been  put  to  expense.  Such  loss  is  of  the  substance  of  his 
cause  of  action. 

As  said  in  Todd  v.  Redford,  11  Mod.  265:  "Husband  and  wife 
cannot  join  in  assault  and  battery  per  quod  consortium  amisit, 
for  the  per  quod  in  such  case  is  the  gist  of  the  action."  In  other 
words,  the  gist  of  the  husband's  cause  of  action  on  account  of  an 
injury  toTTTs  wife  is  not  the  injury  itself,  but  the  consequence  of 
the  injury  in  depriving  him  of  his  common-law  right  to  her  society 
or  services,  or  in  imposing  on  him  the  common-law  duty  to  care 
for  her.  A  case  may  easily  be  imagined  where,  for  an  injury  to 
her  person,  a  cause  of  action — a  technical  cause  of  action  at  least 
— would  instantly  accrue  to  1  \e  wife,  but  where  none  would  ever 
accrue  to  the  husband,  for  t  Je  reason  that  none  of  the  above  in- 
jurious  consequences  to  his  relative  rights  would  follow. 

Where  a  cause  of  action  arises  from  a  wrongful  injury,  it  arises 
at  once;  and  in  such  case  the  subsequently  ascertained  or  devel- 
oped consequences  of  the  injury  are  items  that  might  exist  with- 
out them.  But  in  an  action  by  a  husband  on  account  of  an  injury 
to  his  wife  the  consequences  of  loss  of  her  society  or  services  are 
not  items  of  damages  pertaining  to  an  already  existing  cause  of 
action,  or  to  a  cause  of  action  which  might  exist  without  them, 
but  they  are  essential  to  the  cause  of  action  itself,  which  cannot 
arise  until  such  consequences  have  followed  the  injury.  If  it  could 
be  said  that  the  plaintiff's  cause  of  action  in  his  first  action  arose 
upon  the  negligence  alone,  then  all  the  injurious  consequences  of 
that  negligence,  the  injury  to  his  person,  the  loss  of  his  wife's  so- 
ciety and  services,  caused  by  the  injury  to  her  person,  might  be 
regarded  as  items  of  damage  in  that  cause  of  action.  But  no  cause 
of  action  could  accrue  upon  the  negligence  alone.  That  cause  of 
action  accrued  only  upon  injury  to  his  person  caused  by  the  neg- 
ligence, and,  when  they  concurred,  his  cause  of  action  was  com- 
plete. The  loss  of  his  wife's  services  had  no  connection  with  that 
injury.  That  cause  of  action  was  not  a  consequence  of  it,  and 
not  an  item  of  damage  pertaining  to  it.  His  right  to  recover  for 
such  loss  was  independent,  and  would  have  existed  had  that  cause 
of  action  not  accrued. 

We  have  been  able  to  find  but  two  cases  in  the  tinited  States 
analogous  to  this.  In  Railroad  Co.  v.  Chester,  57  Ind.  297,  the 
plaintiff  had  joined  in  one  count  a  cause  of  action  for  an  injury 
to  himself  with  a  claim  for  damages  for  loss  of  services  of  his 
wife,  and  for  expenses  in  healing  injuries  to  his  child;  the  three 
having  been  injured  at  the  same  time  by  the  same  negligence  of 


52  EIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

defendant.  On  defendant's  motion  to  require  plaintiff  to  state  the 
separate  claims  for  damage  in  separate  counts  or  paragraphs,  the 
supreme  court  held  the  motion  properly  denied,  saying:  "It  seems 
to  us  *  *  *  they  would  really  constitute  but  a  single  cause  of 
action."  Town  of  Newbury  v.  Railroad  Co.,  25  Vt.  Z77 ,  was  an 
action  by  the  town  to  recover  damages  it  had  been  compelled  to 
pay  for  an  injury  to  the  person  caused  by  a  defect  in  a  highway 
which,  as  between  it  and  the  town,  defendant  was  under  a  duty 
to  keep  in  repair.  Husband  and  wife  were  at  the  same  time  in- 
jured in  consequence  of  the  defect.  The  husband  sued  the  town 
for  the  injury  to  himself,  recovered  judgment,  which  the  town  paid, 
and  sued  and  recovered  against  defendant  for  that.  The  husband 
also  sued  the  town  and  recovered  judgment  on  account  of  the 
injury  to  his  wife,  and  the  town  paid  it,  and  sued  defendant  for 
it.  The  defendant  pleaded  in  bar  the  former  recovery  against  it. 
Speaking  of  the  recovering  against  the  town  on  account  of  the 
injury  to  the  wife,  in  reference  to  the  recovery  for  injury  to  the 
husband,  the  court,  Redfield,  C.  J.,  said:  "For  it  is  as  much  a  dis- 
tinct matter  as  if  the  persons  had  been  strangers  to  each  other, 
and  as  much,  I  think,  as  if  the  persons  had  been  injured  at  dif- 
ferent times,  by  reason  of  the  same  neglect  of  defendant." 

The  two  cases  seem  directly  opposed  to  each  other,  though  nei- 
ther is  particularly  satisfactory  as  an  authority.  So  far  as  they 
determine  the  question  here  involved,  the  latter  is  more  consistent 
with  principle.    Order  reversed.^ 


J 


IV.  Action  for  Enticing  or  Alienation  of  Affection ' 


SIMS  V.  SIMS. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1910.    76  Atl.  1063,  29 

L.  R.  A.  [N.   S.]   842.) 

Action  by  Myra  V.  Sims  against  Winfield  S.  Sims  and  others. 
From  an  order  sustaining  a  demurrer  to  the  complaint  {J7  N.  J. 
Law,  251,  72  Atl.  424),  plaintiff  brings  error. 

MiNTURN,  J.  The  suit  was  instituted  to  recover  damages  from 
defendants  for  maliciously  enticing  away  the  plaintiif's  husband, 

8  Accord:  Smith  v.  City  of  St.  Josepli,  55  Mo.  456,  17  Am.  Rep.  600  (1874). 
See,  also,  Holleman  v.  Harward,  119  N.  C.  150,  25  S.  E.  972,  34  L.  R.  A.  S03, 
56  Am.  St.  Rep.  672  (1896),  where  a  husband  was  allowed  to  recover  from  a 
druggist  who  sold  laudanum  to  the  wife,  in  consequence  of  which  she  became 
a  confirmed  subject  of  the  opium  habit. 

9  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.(od  Ed.)  §§ 
45,  46. 


ACTION   FOR  ENTICING   OR  ALIENATION   OF  AFFECTION  53 

and  thereby  alienating  from  her  his  affections.  A  demurrer  was 
mterposed  upon  the  general  ground  that  suit  will  not  lie  for  such 
an  injury,  and  the  Supreme  Court  having  sustained  the  demurrer, 
the  legal  question  thus  raised  is  now  presented  upon  writ  of  error. 

The  plaintiff  bases  her  right  to  sue  upon  an  act  passed  in  1906 
entitled ^^An"  act  for  the  protection  and  enforcement  of  the  rights 
of  married  women"  (P.  L.  1906,  p.  525).  The  act  provides  that 
"au}^  married  woman  may  maintain  an  action  in  her  own  name 
and  without  joining  her  husband  therein,  for  all  torts  committed 
against  her,  or  her  separate  property,  in  the  same  manner  as  she 
lawfully  might  if  a  feme  sole;  provided,  however,  that  this  act 
shall  not  be  so  construed  as  to  interfere  with  or  take  away  any 
right  of  action  at  law  or  in  equity  now  provided  for  the  torts  above 
mentioned."  The  second  section  provides  that  "any  action  brought 
in  accordance  with  the  provisions  of  this  act  may  be  prosecuted 
by  such  married  woman  separately  in  her  own  name,  and  the  non- 
joinder of  her  husband  shall  not  be  pleaded  in  any  such  action." 

It  is  urged  in  support  of  the  demurrer  that  this  act  created  no 
new  right  of  action  in  behalf  of  the  married  woman,  and  that  at 
common  law  no  right  of  action  existed  for  the  tort  alleged  in  this 
declaration ;  and  this  construction  of  the  act  was  adopted  by  the 
Supreme  Court.  The  initial  inquiry,  therefore,  must  necessarily 
be  made  in  the  light  of  the  fundamental  rule  of  statutory  construc- 
tion, which  requires  us  to  search  out  the  old  law  and  the  mischief 
that  it  engendered,  in  order  to  ascertain  whether  the  remedial  leg- 
islation with  which  we  are  now  dealing  was  intended  by  the  Leg- 
islature to  apply  to  such  a  condition.  -*«*--- 

In  its  early  stages  the  common  law  notoriously  enveloped  the 
identity  of  the  wife  and  all  her  possessions  in  the  personality  of 
the  husband ;  and  as  late  as  Wilson  v.  Alpaugh,  52  N.  J.  Eq.  589, 
33  Atl.  50,  the  doctrine  "that  the  rule  of  the  common  law  that  the 
husband  and  wife  are  to  be  regarded  as  one  person"  was  held  not 
to  have  been  abrogated  by  legislation  up  to  that  period  in  this 
state. 

That  the  right  of  consortium  was  recognized  by  the  common 
law  as  an  existing  right  in  the  married  woman,  however,  but  in- 
capable of  enforcement,  owing  to  the  common-law  doctrine  of  iden- 
tity of  personality,  is  made  clear  by  Blackstone,  who,  in  his  third 
volume,  dealing  with  "Private  Wrongs,"  mentions  a  class  in  which 
the  common  law,  failing  to  provide  a  remedy,  recognized  the  right 
of  the  ecclesiastical  courts,  or  their  successor,  to  administer  re- 
dress, not  "for  the  reformation  of  the  party  injuring,  but  for  the 
sake  of  the  party  injured;  to  make  him  a  satisfaction  and  redress 
for  the  damages  which  he  has  sustained."  3  Bl.  Com.  87.  Un- 
der this  general  topic  the  learned  commentator  treats  of  "matri- 
monial causes,  or  injuries  respecting  the  rights  of  marriage,"  and 
says:  "The  suit  for  the  restitution  of  conjugal  rights  is  also  another 


54  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

Species  of  matrimonial  causes  which  is  brought  whenever  either 
the  husband  or  wife  is  guilty  of  the  injury  of  subtraction,  or  lives 
separate  from  the  other  without  any  sufficient  reason;  in  which 
case  the  ecclesiastical  jurisdiction  will  compel  them  to  come  to- 
gether again."       Id.  94. 

This  recognition  by  the  common  law  of  the  fact  that  the  loss 
of  consortium  was  an  injury  to  the  wife,  and  that  its  enforcement 
was  her  right,  and  the  corresponding  failure,  on  the  other  hand, 
to  provide  her  with  a  legal  remedy  for  the  tort,  is  properly  defini- 
tive of  her  status  at  common  law,  and  places  that  branch  of  legal 
learning  upon  its  proper  footing.  From  which  it  follows  that  if 
at  any  time  the  Legislature  should  remove  the  common-law  im- 
pediment as  to  remedy,  the  right  existing  is  thus  made  capable  of 
enforcement  under  the  remedial  code.  21  Cyc,  note  50,  and  cases 
cited. 

That  the  common-law  courts  failed  to  find  a  remedy  is,  under 
the  decisions,  rather  a  recognition  of  the  right,  than  a  denial  of  its 
existence.  For  it  may  be  said  that  the  history  of  common-law 
jprocedure  is  largely  the  history  of  substantive  rights,  remediless 
{at  first  for  lack  of  a  suitable  writ  or  precedent  in  the  Registrum 
jBrevium,  until  the  persistence  of  the  demand  for  a  remedy  devel- 
ioped  the  action  of  trespass  on  the  case  as  a  general  specific  in 
consimili  casu,  under  the  provisions  of  the  statute  of  Westmin- 
ster II.  The  foHowing  cases  serve  also  to  illustrate  the  existence 
of  this  right  at  common  law:  Firebrace,  4  P.  B.  63;  Yelverton^ 
1  Siv.  &  Tr.  586;  Orme,  2  Add.  Ecc.  382;  Reg.  v.  Jackson,  1  Q. 
B.  685. 

The  very  helpful  briefs  of  the  learned  counsel  in  this  case  in- 
stance the  case  of  Lynch  v.  Knight,  9  H.  L.  Cas.  577,  11  Irish 
Jurist,  284,  which  is  highly  instructive  upon  this  phase  of  the  ques- 
tion, as  illustrating  the  endeavor  of  the  English  judges  at  that 
time  to  supply  a  remedy  for  a  conceded,  existing  right.  "Can  it 
be,"  inquired  the  Chief  Justice  of  the  Irish  Queen's  Bench,  "that 
for  an  injury  of  this  sort  a  wife  can  have  no  redress?  Is  it  pos- 
sible to  sustain  the  proposition?"  When  the  case  was  determined 
upon  another  ground  in  the  House  of  Lords,  Lord  Campbell  said : 
"Nor  can  I  allow  that  the  loss  of  consortium  or  conjugal  society 
can  give  a  cause  of  action  to  the  husband  alone ;  I  think  it  may 
be  a  loss  which  the  law  may  recognize  to  the  wife  as  well  as  to 
the  husband." 

These  sentiments  have  found  expression  and  recognition  in  the 
adjudications  of  the  highest  courts  of  our  states;  and  now  it  may 
be  fairly  stated  that  the  great  weight  of  authority  in  this  coun- 
try supports  the  proposition  that  the  right  to  the  consortium  of 
the  husband  was  recognized  at  common  law  as  a  right  inherent 
in  the  wife,  enforceable,  however,  owing  to  the  policy  of  the  times, 
only  in  an  action  jointly  by  husband  and  wife.     Bennett  v.  Ben- 


ACTION    FOR   ENTICING   OR   ALIENATION    OF    AFFECTION  55 

nett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553;  Foot  v.  Card, 
58  Conn.  1,  18  Atl.  1027,  6  L.  R.  A.  829,  18  Am.  St.  Rep.  258; 
Seaver  v.  Adams,  66  N.  H.  142,  19  Atl.  776,  49  Am.  St.  Rep.  597; 
Haynes  v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R.  A.  787,  28 
Am.  St.  Rep.  213;  Knapp  v.  Wing,  72  Vt.  334,  47  Atl.  1075;  Smith 
V.  Smith,  98  Tenn.  101,  38  S.  W.  439,  60  Am.  St.  Rep.  838;  Bassett 
V.  Bassett,  20  111.  App.  543 ;  Warren  v.  Warren,  89  Mich.  123,  50 
N.  W.  842,  14  L.  R.  A.  545 ;  Westlake  v.  Westlake,  34  Ohio  St. 
621,  32  Am.  Rep.  397;  Mehrhoff  v.  Mehrhoff  (C.  C.)  26  Fed.  13; 
Railsback  v.  Railsback,  12  Ind.  App.  659,  40  N.  E.  276,  1119;  Bailey 
V.  Bailey,  94  Iowa,  598,  63  N.  W.  341 ;  Hodgkinson  v.  Hodgkinson. 
43  Neb.  269,  61  N.  W.  577,  27  L.  R.  A.  120,  47  Am.  St.  Rep.  759. 

So,  too,  the  modern  text-writers  of  authority  support  its  exist- 
ence. "By  the  great  weight  of  authority,"  says  Tiffany,  "since 
the  loss  of  service  is  not  necessary  to  the  action  and  the  right  to 
each  other's  society  and  comfort  is  reciprocal,  a  wife  may  maintain 
such  an  action,  even  at  common  law  and  in  the  absence  of  such 
a  statute."  Domestic  Relations,  78.  To  the  same  effect  are :  Jag- 
gard  on  Torts,  p.  467;  Bigelow  on  Torts,  p.  153;  21  Cyc.  1618. 

Three  states  alone  have  been  classified  as  denying  the  existence 
of  the  right.  In  Wisconsin,  in  the  early  case  of  Duffies  v.  Duffies, 
76  Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20  Am.  St.  Rep.  79,  it 
was  determined,  in  effect,  upon  the  theory  that  the  absence  of 
remedy  at  common  law  determined  the  nonexistence  of  the  right. 
The  case  was  followed  upon  the  doctrine  of  stare  decisis  in  Lons- 
torf  v.  Lonstorf,  118  AVis.  159,  95  N.  W.  961,  by  a  divided  court, 
two  of  the  learned  judges  contributing  vigorous  dissenting  opin- 
ions to  the  discussion.  The  adjudications  in  the  Maine  court  rest 
upon  opinions  based  upon  the  court's  view  of  an  expedient  pub- 
lic policy  in  that  state,  and  are  of  no  force  as  arguments  upon  the 
question  of  the  existence  or  nonexistence  of  a  common-law  prin- 
ciple. Doe  V.  Roe,  82  Me.  503,  20  Atl.  83,  8  L.  R.  A.  833,  17  Am. 
St.  Rep.  499;  Morgan  v.  Martin,  92  Me.  190,  42  Atl.  354. 

We  are  finally  referred  to  the  determination  of  our  own  Supreme 
Court  in  1903,  in  Hodge  v.  Wetzler,  69  N.  J.  Law,  490,  55  Atl. 
49,  which  furnishes  ratio  decidendi  for  the  determination  of  the  Su- 
preme Court  in  this  controversy.  Hodge  v.  Wetzler,  however,  a? 
we  read  it,  does  not  attempt  to  decide  the  question,  but,  per  con- 
tra, Mr.  Justice  Hendrickson,  in  the  absence  of  such  a  statute  as 
that  sub  judice,  and  reviewing  the  question  only  from  the  power 
conferred  by  the  then  existing  married  woman's  act  (Gen.  St.  p. 
2012),  and  the  twenty-third  section  of  the  practice  act  (Gen.  St. 
2536),  concluded  that  these  statutes  did  not  confer  the  right  of 
action.  But  upon  the  question  as  to  the  existence  of  the  right  at 
common  law  the  learned  justice  was  careful  not  to  commit  the 
court,  and  said:  "We  do  not  deem  it  necessary  in  this  case  to 
discuss  the   question  of  abstract  right,  for  the  reason   that,   con- 


56  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

ceding  its  existence,  we  fail  to  find  a  statute  of  this  state  em- 
powering a  married  woman  to  sue  as  a  feme  sole  in  actions  of  this 
character."    Page  492  of  69  N.  J.  Law,  page  50  of  55  Atl. 

The  question  therefore  presented  in  this  case,  in  the  light  of  the 
act  of  1906,  is  res  nova,  and  the  conclusion  we  have  reached  is 
supported  by  the  great  weight  of  authority.  That  this  act  was  in- 
tended to  confer  the  power  upon  a  married  woman  to  protect  and 
enforce  her  rights,  is  the  specific  announcement  contained  in  its 
title.  The  body  of  the  act  declares  that  she  may  maintain  an 
action  as  a  feme  sole  might  lawfully  do,  and  without  joining  her 
husband  therein  for  all  torts  committed  against  her  or  her  prop- 
erty. Keeping  in  mind  the  old  law  and  the  existing  mischief,  it 
becomes  manifest  that  the  legislative  intent  which  inspired  this 
remedial  measure  could  have  been  only  a  desire  to  confer  upon  the 
married  woman  that  equality  of  remedy  as  an  independent  suitor, 
which  would  enable  her  to  vindicate  her  right  in  personam  for  a 
tort  committed  against  her,  and  thus  remedy  the  inequality  to 
which  she  was  subjected  by  the  common  law. 

The  judgment  of  the  Supreme  Court  should  be  reversed  and 
judgment  rendered  in  favor  of  the  plaintiff,  quod  recuperet,  etc., 
and  the  record  remitted  to  the  Supreme  Court  for  execution  of 
a  writ  of  inquiry  and  the  entry  of  final  judgment  for  the  damages 
thus  ascertained,  with  costs,  including  the  plaintiff's  costs  in  this 
court  (2  Tidd  Pr.  1180;  Meeker  v.  City  of  East  Orange,  77  N.  J. 
Law,  623,  74  Atl.  379,  385,  25  L.  R.  A.  (N.  S.)  465,  134  Am.  St. 
Rep.  798)  unless  the  Supreme  Court  shall,  on  application  made  for 
that  purpose,  grant  leave  to  the  defendants  to  plead  to  the  merits 
of  the  action. 


RIGHTS  IN   PROPERTY   AS  AFFECTED   BT   COVERTURE  57 

RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

I.  Wife's  Earnings  * 


BLAECHINSKA  v.  HOWARD  MISSION  &  HOME  FOR 
LITTLE  WANDERERS. 

(Court  of  Appeals  of  New  York,  1892.    130  N.  Y.  497,  29  N.  E.  755,  15 

L.  R.  A.  215.) 

Action  by  Hedwig  Blaechinska  against  the  Howard  Mission  & 
Home  for  Little  Wanderers  to  recover  damages  which  the  plaintiff 
claims  to  have  sustained  through  the  negligence  of  the  defendant  in 
maintaining  a  broken  cover  over  a  coal-hole  in  a  public  sidewalk, 
which  caused  her  to  fall  and  break  her  arm.  There  was  judgment 
for  plaintiff.  Defendant  appeals  from  a  judgment  of  the  general 
term  affirming  the  said  judgment,  and  also  affirming  an  order  deny- 
ing a  motion  for  a  new  trial. 

Vann,  J.  Upon  the  trial  of  this  action  the  plaintiff  testified 
that,  at  the  time  she  was  injured,  she  was  living  with  her  husband, 
a  custom  tailor,  for  whom  she  worked  as  a  seamstress.  She  was 
then  asked  by  her  counsel,  "Were  you  in  receipt  of  a  salary  from 
him?"  and  under  objection  answered:  "Y£^,_L-X-ecei-v-€d-a  salarry 
of  five  and  six  dollars  a  week;  and  I  did  all  the  housework,  and 
now  r  can'^  do  it,  and  I  rrrust  have  help.  I  used  to  do  very  good 
tailoring,  but  I  can't  do  it  now."  On  her  cross-examination,  she 
testified  that  she  used  the  money  thus  earned  by  her  for  the  chil- 
dren, and  the  general  support  of  the  faniily.  It  did  not  appear  that 
she  Had  any  separate  estate  or  business.  The  court  charged  the 
jury  that  the  plaintiff,  if  she  could  recover  at  all,  TV'as—entitled 
"to  recover  for  the  loss  of  wages  which  she  has  sustained."  The 
exceptions  taken  by  the  defendant  to  these  rulings  present  the 
only  question  that  we  are  asked  to  decide  on  this  appeal. 

The  learned  general  term  affirmed  the  judgment  of  the  circuit 
on  the  ground  that  the  money  which  the  plaintiff  had  been  accus- 
tomed to  receive  from  her  husband  for  services  rendered  outside 
of  her  household  duties  was  her  own  property,  and  that  the  loss 
of  the  salary  could  be  given  in  evidence  as  an  element  of  damage, 
the  same  as  if  she  had  been  working  for  a  stranger.  The  only 
cases  cited  in  support  of  this  conclusion  are  Brooks  v.  Schwerin, 
54  N.  Y.  343,  and  Reynolds  v.  Robinson,  64  N.  Y.  589.    The  ena- 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3(1  Ed.) 
148. 


58        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

bling  act  of  1860  (Laws  1860,  c.  90,  as  amended  by  Laws  1862,  c. 
172,)  makes  separate  property  out  of  that  which  a  married  wo- 
man "acquires  by  her  trade,  business,  labor,  or  services,  carried 
on  or  performed  on  her  sole  and  separate  account."  As  the  hus- 
band is  entitled  to  the  services  of  his  wife  at  common  law,  it  has 
uniformly  been  held  that  the  statute  does  not  apply  to  labor  per- 
formed by  her  for  him  in  his  household,  even  if  it  is  of  somewhat 
extraordinary  character.  Reynolds  v.  Robinson,  64  N.  Y.  589; 
Coleman  v.  Burr,  93  N.  Y.  17,  45  Am.  Rep.  160.  But  the  hus- 
band's right  to  the  services  of  his  wife  is  not  limited  to  those  per- 
formed for  him  in  his  house;  for,  when  she  works  for  him  out 
of  doors  upon  his  farm,  she  is  entitled  to  no  pecuniary  compensa- 
tion, and  his  written  promise  to  pay  her  therefor  is  without  consid- 
eration. Whitaker  v.  Whitaker,  52  N.  Y.  368,  371,  11  Am.  Rep. 
711.  When  she  works  with  her  husband  for  another,  and  their 
joint  earnings  are  used  to  support  the  family,  if  there  is  no  special 
contract  that  she  is  to  receive  the  avails  of  her  labor,  they  belong 
to  him,  and  he  is  entitled  to  recover  their  value.  Birkbeck  v.  Ack- 
royd,  74  N.  Y.  356,  30  Am.  Rep.  304;  Id.,  11  Hun,  365;  Beau  v. 
Kiah,  4  Hun,  171. 

Until  recently  the  power  of  a  married  woman  to  make  general 
contracts,  not  relating  to  labor  to  be  "performed,  on  her  sole  and 
separate  account,"  depended  upon  the  act  of  1860;  and  the  pos- 
session of  a  separate  estate,  or  engagement  in  a  separate  business, 
was  essential  to  their  validity,  although  she  might  become  liable 
through  her  representations  by  estoppel.  Linderman  v.  Farquhar- 
son,  101  N.  Y.  434,  5  N.  E.  67;  Frecking  v.  Rolland,  53  N.  Y.  422; 
Insurance  Co.  v.  Babcock,  42  N  Y.  613,  1  Am.  Rep.  601 ;  Bodine  v. 
Killeen,  53  N.  Y.  93.  In  1884  her  powers  were  amplified  so  that 
she  may  now  enter  into  contracts  to  the  same  extent,  with  like 
effect,  and  in  the  same  form,  as  if  unmarried,  whether  such  con- 
tracts relate  to  her  separate  estate  or  not;  but  this  enlargement  of 
her  rights  does  not  extend  to  any  contract  between  herself  and 
her  husband.  Laws  1884,  c.  381.  She  has  further  been  authorized 
by  statute  to  convey  lands  directly  to,  and  to  accept  conveyances 
directly  from,  her  husband,  without  the  intervention  of  a  third  per- 
son. Laws  1887,  c.  537.  Under  the  act  of  1860,  she  could  contract 
with  her  husband  in  relation  to  her  separate  estate ;  for  as  to  that 
she  stood  "at  law  on  the  same  footing  as  if  unmarried."  Noel  v. 
Kinney,  106  N.  Y.  74,  78,  12  N.  E.  351,  60  Am.  Rep.  423 ;  Stanley  v. 
Bank,  115  N.  Y.  122,  22  N.  E.  29;  Manchester  v.  Tibbetts,  121  N. 
Y.  219,  24  N.  E.  304,  18  Am.  St.  Rep.  816;  Suau  v.  Cafife,  122  N.  Y. 
308,  25  N.  E.  488,  9  L.  R.  A.  593;  Bank  v.  Guenther,  123  N.  Y. 
568,  25  N.  E.  986,  20  Am.  St.  Rep.  780 ;  Owen  v.  Cawley,  36  N.  Y. 
600;  Bodine  v.  Killeen,  53  N.  Y.  93;  Frecking  v.  Rolland,  53  N.  Y. 
422 ;  Knapp  v.  Smith,  27  N.  Y.  277 ;  Seymour  v.  Fellows,  77  N.  Y. 
178.    The  contract  in  Hendricks  v.  Isaacs,  117  N.  Y.  411,  22  N.  E. 


wife's  earnings  59 

1029,  6  L.  R.  A.  559,  15  Am.  St.  Rep.  524,  was  doubtless  regarded 
as  not  relating  to  the  separate  estate  of  the  wife;  and  on  this 
basis  it  is  not  in  conflict  with  the  authorities  cited  above. 

But,  while  she  can  thus  contract  with  her  husband  with  reference 
to  her  separate  property,  can  she  make  a  binding  agreement  with 
him  as  to  her  own  services,  to  be  rendered  outside  of  her  household 
duties,  and  having  no  connection  with  a  separate  business  or  estate? 
In  other  words,  can  she  hire  out  to  him,  to  work  in  his  store,  or 
factory,  and  compel  him  to  pay  the  price  agreed  upon  for  her  serv- 
ices? If  she  can,  it  follows  that  the  plaintiflc  was  entitled  to  her 
earnings  under  the  contract  that  may  be  implied  from  the  pay- 
ment of  wages  to  her  by  her  husband,  and,  her  ability  to  earn 
having  been  impaired  by  the  negligence  of  the  defendant,  the  fact 
was  properly  proved  before  and  submitted  to  the  jury;  otherwise, 
the  evidence  objected  to  was  improperly  received,  and  it  was  error 
to  instruct  the  jury  that  they  might  consider  it  in  assessing  the 
damages.  As  a  man  cannot  make  a  valid  contract  to  pay  his  wife 
for  extraordinary  services  rendered  in  his  household  or  for  work- 
ing on  his  farm,  how  can  he  make  a  valid  contract  to  pay  her  for 
helping  him  make  clothes  in  his  business  as  a  custom  tailor?  What 
basis  is  there  for  any  distinction?  Does  the  statute  which  so 
modified  the  common  law  as  to  give  to  the  wife  her  earnings  from 
her  own  labor,  performed  on  her  "sole  and  separate  account,"  con- 
template that  services  for  her  husband  can  be  performed  on  her 
"sole  and  separate  account,"  unless  they  have  some  relation  to  a 
separate  estate? 

Under  the  rule  laid  down  in  Coleman  v.  Burr  and  Whitaker  v. 
Whitaker,  supra,  the  words  "sole  and  separate  account,"  as  used 
in  the  statute,  cannot  mean  simply  an  election  on  the  part  of  the 
wife  to  work  for  her  own  benefit,  regardless  of  whom  the  work  is 
done  for.  In  those  cases,  her  election  to  work  for  herself,  although 
manifest,  did  not  take  the  contract  out  of  the  common-law  rule. 
In  deciding  Whitaker  v.  Whitaker  the  court  used  this  significant 
language:  "If  a  wife  can  be  said  to  be  entitled  to  higher  con- 
sideration or  compensation  because  she  labors  in  the  field  instead 
of  in  her  household,  *  *  *  the  law  makes  no  such  distinction. 
It  never  has  recognized  the  right  to  compensation  from  her  hus- 
band on  account  of  the  peculiar  character  of  her  services."  It 
seems  to  be  the  policy  of  the  legislature,  as  indicated  by  recent  en- 
actments, to  relieve  every  married  woman  of  the  disability  of  cover- 
ture in  contracting  with  any  one  except  her  husband.  As  to  him 
the  restriction  is  continued,  except  that  the  formality  of  convey- 
ing real  estate  through  the  medium  of  a  third  person  is  no  longer 
required.  The  object  of  the  legislature  was,  probably,  to  protect 
the  marital  relation,  as  well  as  to  prevent  the  perpetration  of  frauds 
upon  creditors.  Every  experienced  observer  realizes  that  an  un- 
limited right  on  the  part  of  the  wife  to  contract  with  her  hus- 


60  RIGHTS  IN   PROPERTY  AS  AFFECTED  BY   COVERTURE 

band  would  afford  an  easy  cover  for  fraud,  and  would  be  a  per- 
petual menace  to  creditors. 

The  enabling  statutes  do  not  relieve  a  wife  of  the  duty  of  ren- 
dering services  to  her  husband.  While  they  give  her  the  benefit 
of  what  she  earns,  under  her  own  contracts,  by  labor  performed 
for  any  one  except  her  husband,  her  common-law  duty  to  him  re- 
^mains;  and,  if  he  promises  to  pay  her  for  working  for  him,  it  is 
a  promise  to  pay  for  that  which  legally  belongs  to  him.  The  fact 
that  he  cannot  require  her  to  perform  services  for  him  outside  of 
the  household  does  not  affect  the  question,  for  he  could  not  re- 
quire it  at  common  law.  Such  services  as  she  does  render  him, 
whether  within  or  without  the  strict  line  of  her  duty,  belong  to 
him.  If  he  pays  her  for  them,  it  is  a  gift.  If  he  promises  to  pay  her 
a  certain  sum  for  them,  it  is  a  promise  to  make  her  a  gift  of  that 
sum.  She  cannot  enforce  such  a  promise  by  a  suit  against  him. 
We  think  the  rule  is  well  stated  by  a  recent  writer  when  he  says 
that  the  enabling  acts  do  not  apply  to  the  labor  performed  by  a 
married  woman  "for  her  husband,  or  bestowed  on  his  business,  or 
in  his  household,  or  in  his  care,  or  in  the  care  of  his  family;  for 
in  such  cases  it  is  her  marital  duty,  and  he  is  not  liable  to  pay  for 
the  services  of  his  wife."    Kelly,  Cont.  Mar.  Wom.  153. 

These  views  are  not  in  conflict  with  Brooks  v.  Schwerin,  54  N. 
Y.  343.  The  plaintiff  in  that  case — a  married  woman — lived  with 
her  husband,  and  took  charge  of  the  family.  Having  been  in- 
jured by  the  negligence  of  the  defendant,  she  was  allowed  to  show, 
under  objection,  on  the  trial  of  an  action  brought  to  recover  dam- 
ages therefor,  that  she  had  worked  out,  and  received  10  shillings 
a  day.  The  court  refused  to  charge  that  she  could  not  recover 
for  her  time  and  services  while  disabled.  It  was  held  by  three  out 
of  the  five  commissioners  who  participated  in  the  decision  that  the 
evidence  was  competent,  and  that  the  request  was  too  broad,  and. 
was  properly  refused  for  that  reason.  The  distinction  between 
that  case  and  this  is  that  in  the  former  the  wife  worked  for  a  third 
person,  while  in  the  latter  she  worked  for  her  husband.  When  she 
worked  for  a  stranger  it  was  on  her  sole  and  separate  account,  and 
the  enabling  act  protected  her  contract.  When  she  worked  for 
her  husband,  it  was  on  his  account,  and  the  statute  did  not  apply. 

In  Filer  v.  Railroad  Co.,  49  N.  Y.  47,  10  Am.  Rep.  327,  a  leading 
case  upon  the  subject,  it  was  held  that  a  wife,  not  engaged  in 
business,  or  in  performing  labor  on  her  sole  and  separate  account, 
when  injured  by  the  wrongful  act  of  another,  could  not  recover 
consequential  damages  resulting  from  her  inability  to  labor.  The 
court  said:  "Her  services  and  earnings  belonged  to  her  husband; 
and  for  the  loss  of  such  services,  caused  by  the  accident,  he  may 
have  an  action.  *  *  *  ghg  jg  authorized  to  sue  for  any  in- 
jury to  her  person  or  character,  the  same  as  if  she  were  sole.  This 
is  for  the  direct  injury  and  for  direct  and  immediate  damages,  un- 


wife's  earnings  61 

less  she  is,  on  her  own  account  and  for  her  own  benefit,  engaged 
in  some  business  in  which  she  sustains  a  loss." 

While  we  have  considered,  we  have  not  cited,  many  cases  that 
bear  more  or  less  directly  upon  the  general  subject,  but  have  re- 
ferred to  such  as  declare,  limit,  and  illustrate  the  law  relating  to 
the  capacity  of  a  married  woman  to  contract  with  her  husband  in 
relation  to  her  own  services.  Applying  the  law,  as  we  gather  it 
from  the  statute  and  the  manifold  decisions,  to  the  facts  of  this 
case  as  now  laid  before  us,  we  think  that  the  plaintiff  is  entitled 
to  recover  actual  damages  only,  and  that  the  consequential  dam- 
ages for  loss  of  her  services,  both  in  the  house  and  in  the  shop, 
should  be  recovered  by  her  husband  in  a  separate  action  brought 
in  his  own  name.  The  damages  for  the  injury  to  her  person  be- 
long to  her,  because  the  statute  has  given  them  to  her;  but  the 
damages  for  the  loss  of  her  services  belong  to  him,  because  the 
common  law  gave  them  to  him,  and  the  statute  has  not  taken  them 
away.  The  judgment  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event.    All  concur. 


NUDING  et  al.  v.  URICH. 
(Supreme  Court  of  Pennsylvania,  1895.     169  Pa.  289,  32  Atl.  409.) 

A  writ  of  fi.  fa.  was  issued  on  a  judgment  in  favor  of  B.  Nuding 
and  another  against  Samuel  Urich,  on  which  $411  was  realized. 
Anna  Urich,  wife  of  Samuel,  presented  a  preferred  claim  to  the 
sheriff  for  $108,  alleged  to  be  due  under  a  contract  with  her  hus- 
band as  his  servant.  The  court  of  common  pleas  held  the  contract 
valid,  and  distributed  to  Mrs.  Urich  the  amount  of  her  claim,  and 
the  judgment  creditors  appeal. 

Green,  J.  If  Mrs.  Urich  had  been  employed  by  a  stranger  to 
perform  the  same  services  that  she  rendered  in  this  case,  and  for 
the  same  wages,  and  her  husband  had  consented  to  such  employ- 
ment, the  wages  to  be  paid  to  her,  there  can  be  no  doubt  she  would 
have  had  a  valid  legal  title  to  the  earnings,  and  could  have  sus- 
tained her  claim  against  his  will,  although  he  might  subsequently 
have  claimed  the  wages  on  the  ground  that  he  was  the  owner  of 
her  earnings  as  her  husband.  And  the  reason  why  she  could  re- 
cover them  as  against  him  would  be  because  he  had  so  contracted. 
In  other  words,  his  legal  right  to  her  earnings  in  the  absence  of 
a  contract  would  be  gone,  because  of  her  contract  made  between 
him  and  her.  Where  he  agreed  that  she  might  have  the  earnings, 
he  certainly  forfeited  any  claim  that  he  might  otherwise  have  to 
them,  and  thereby  surrendered  such  claim  to  her.  If  now  he  makes 
a  contract  directly  with  his  wife  that  he,  having  occasion  for  extra 
and  unusual  service  in  the  course  of  his  business  outside  of  his 


62  RIGHTS  IN   PROPERTY  AS  AFFECTED   BY   COVERTURE 

family  relation  and  needs,  will  pay  his  wife  for  the  performance 
of  such  service  the  special  wages  which  otherwise  he  would  be 
obliged  to  pay  to  strangers,  it  is  at  least  true  that,  so  far  as  he  is 
concerned,  he  has  surrendered  to  his  wife  all  claim  to  be  the  owner 
of  her  services,  and  therefore,  of  the  compensation  which  he  has 
agreed  to  pay  her.  His  consent  that  she  shall  receive  the  com- 
pensation for  the  service  certainly  divests  the  case  of  the  aspect 
that  he,  as  the  owner  of  her  services,  and  therefore  of  her  earn- 
ings, is  entitled  to  both,  against  her  will,  and  that  element  of  the 
contention  is  removed  from  the  argument. 

What,  then,  is  left?  Nothing  but  the  proposition  that  a  hus- 
band and  wife  cannot  make  such  a  contract.  Why  not?  There  is 
nothing  in  the  act  of  1893,  which  gives  her  a  contracting  power, 
Vhat  denies  or  restrains  her  right  to  contract  with  her  husband. 
The  second  section  of  the  act  (P.  L.  344,  Act  June  8,  1893)  pro- 
vides that  "hereafter  a  married  woman  may,  in  the  same  manner 
and  to  the  same  extent  as  an  unmarried  person,  make  any  con- 
tract in  writing  or  otherwise,  which  is  necessary,  appropriate,  con- 
venient or  advantageous  to  the  exercise  or  enjoyment  of  the  rights 
and  powers  granted  by  the  foregoing  section"  (section  1),  but 
she  may  not  become  accommodation  indorser,  nor  execute  a  deed 
without  joining  her  husband.  Here  is  a  very  large  contracting 
power  conferred,  with  only  special  restrictions,  which  do  not  em- 
brace the  pending  question.  Within  her  limitations,  a  married  wo- 
man may  contract  to  the  same  extent,  and  in  the  same  manner, 
as  an  unmarried  person.  The  first  section  defines  the  subjects  of 
her  contracting  power  thus:  "that  hereafter  a  married  woman 
shall  have  the  same  right  and  power  as  an  unmarried  person  to 
acquire,  own,  possess,  control,  use,  lease,  sell  or  otherwise  dis- 
pose of  any  property  real,  personal  or  mixed,  and  either  in  pos- 
session or  expectancy,"  etc.  The  word  "earnings"  does  not  ap- 
pear in  this  act;  but,  as  personal  services  are  a  species  of  per- 
sonal property,  it  would  seem  they  may  be  sold ;  and,  as  earnings 
represent  in  common  speech  the  reward  for  such  services,  whether 
in  money  or  chattels,  it  would  seem  that  they  may  be  "acquired" 
or  "owned"  or  "possessed,"  within  the  fair  meaning  of  the  sec- 
tion. In  Re  Lewis'  Estate,  156  Pa.  337,  27  Atl.  35,  we  held  that, 
under  the  act  of  1887,  the  earnings  of  a  married  woman  were  a 
species  of  property,  and  belonged  to  her  and  not  to  her  husband; 
and  we  all  agreed  that  she  should  have  them  where  they  were  the 
reward  of  her  personal  service.  Her  title  to  them  was  absolute,  and 
she  could  recover  them  in  an  action  without  joining  her  husband. 

We  do  not  think  the  act  of  1893  was  intended  to  restrain  the 
meaning  of  the  act  of  1887,  but  to  stand  as  a  substitute  for  it,  and 
with  power  and  authority  and  contracting  capacity  of  married  wo- 
men, at  least  equal  to  that  which  was  conferred  by  the  act  of  1887. 
The  word  "acquire"  in  the  act  of  1893  we  think  includes  every- 


wife's  personalty  in  possession  63 

thing  that  would  be  included  in  the  word  "earned"  in  the  act  of 
1887.  A  reading  of  the  two  acts  together  indicates  clearly  that  the 
later  one  was  intended  to  remove  some  doubts  about  the  construc- 
tion of  the  first,  and  to  place  the  rights  and  powers  of  married 
women  upon  a  broader,  more  comprehensive,  and  better-defined 
basis  than  was  accomplished  by  the  act  of  1887.  The  title  of  the 
act  of  1893  expressly  states,  as  one  of  the  objects  of  the  act,  the 
"enlarging  her  capacity  to  acquire  and  dispose  of  property."  In 
the  present  case,  everything  that  could  be  done  was  done  by  the 
husband  to  enable  the  wife  by  her  own  personal  service  to  ac- 
quire for  herself  alone  the  reward  of  that  service,  and  no  rights  of 
his  independent  of  contract  are  in  the  way  of  her  recovery.  We 
agree  with  the  learned  court  below  in  the  views  expressed  upon 
this  subject,  and  therefore  affirm  the  decree.  Decree  affirmed,  and 
appeal  dismissed,  at  the  cost  of  the  appellants. 

Williams  and  Mitchell,  JJ.  We  dissent  from  this  judgment. 
If  it  be  conceded  that  the  alleged  contract  is  good  between  the 
parties,  it  is  not  good  as  against  the  husband's  creditors. 


II.  Wife's  Personalty  in  Possession  ' 


JORDAN  v.  JORDAN. 
(Supreme  Judicial  Court  of  Maine,   IS&i.     52  Me.  320.) 

Assumpsit,  for  money  had  and  received. 

It  appeared  that  the  money  in  controversy  was  the__moiLey  -of 
the  plaintiff  before_heiL  marriage,  in  June,  1834,  and  was  never 
reduced  to  possession  by  her  husband  during  their  marriage,  but 
remained  during  that  time  under  her  sole  control. 

The  defendant  claimed  the  money  as  belonging  to  the  estate. 

The  presiding  judge  instructed  the  jury  that,  if  they  believed 
from  the  testimony  that  the  plaintiff  retained  possession  and  con- 
trol of  the  money  sued  for  during  coverture  till  the  husband's 
death,  then  the  money  remained  her  property. 

The  verdict  was  for  the  plaintiff  and  the  defendant  excepted. 

Appleton,  C.  J.  By  the  common  law,  the  personal  property  of 
the  wife,  which  she  had  at  the  time  of  her  marriage  in  her  own 
right,  such  as  money,  goods  and  chattels,  vests  immediately  and  ab- 
solutely in  the  husband,  who  can  dispose  of  them  as  he  pleases. 

2  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  49. 


64        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

On  his  death,  they  go  to  his  representatives,  as  being  entirely  his 
property.  2  Kent's  Com.  135.  "As  to  chattels  personal,  which 
the  wife  has  in  her  own  right,  as  ready  money,  jewels,  household 
goods,  and  the  like,  the  husband  has  therein  an  immediate  and 
absolute  property  devolved  to  him  by  marriage,  not  potentially, 
but  in  fact,  which  never  again  can  revest  in  the  wife  or  her  repre- 
sentatives." 2  Black.  Com.  435.  These  doctrines  of  the  common 
law  have  received  the  sanction  of  courts  of  the  highest  authority 
in  this  country.  Burleigh  v.  Coffin,  22  N.  H.  118;  Wheeler  v. 
Moore,  13  N.  H.  478 ;  Hyde  v.  Stone,  9  Cow.  (N.  Y.)  230,  18  Am. 
Dec.  501;  Blanchard  v.  Blood,  2  Barb.  (N.  Y.)  353;  Ames  v. 
Chew,  5  Mete.  (Mass.)  321 ;  Washburn  v.  Hale,  10  Pick.  (Mass.) 
429;   Savage  v.  King,  17  Me.  301. 

The  choses  in  action  of  the  wife  do  not  thus  vest  absolutely  in 
the  husband.  He  must  reduce  them  to  possession  in  the  lifetime 
of  the  wife.  If  not  so  reduced  to  possession  upon  his  death,  they 
belong  to  the  wife  and  not  to  the  representatives  of  the  husband. 

The  instructions  given  were  at  variance  with  the  rules  of  the 
common  law,  which  had  .not  been  modified  by  legislation  in  1834, 
and  were  erroneous. 

How  far  existing  statutes  may  affect  the  rights  of  the  parties  is 
not  now  before  us,  either  upon  the  instruction  requested  or  those 
given.    Exceptions  sustained. 


III.  Wife's  Choses  in  Action* 
1.  At  Common  Law 


WELLS  v.  TYLER. 
(Supreme  Court  of  Judicature  of  New  Hampshire,  1852.    25  N.  H.  340.) 

Assumpsit.  It  was  agreed  by  the  parties  that  judgment  should 
be  rendered  for  either  party,  as  hereinafter  specified,  according  to 
the  opinion  of  the  court  upon  the  following  statement  of  facts: 

On  the  24th  day  of  March,  1851,  John  Spaulding,  the  defend- 
ant's testator,  died,  having  made  his  will,  in  and  by  which  he  de- 
vised and  bequeathed  to  his  daughter,  Mary  Wells,  wife  of  the 
plaintiff,  as  follows:  "I  give  and  bequeath  to  my  daughter,  Mary 
Wells,  wife  of  Philander  B.  Wells,  one  thousand  dollars,  to  be 
paid  to  her  or  her  heirs  at  the  decease  of  my  wife;    except  my 

3  For  discussion  of  principles,  see  Tiffany,  Persons  &  bom.  Rel.  (3d  Ed.) 
«§  50,  51. 


wife's  choses  in  action  65 

wife  shall  think  best  to  pay  it,  or  cause  it  to  be  paid,  or  any  part 
thereof,  during  her  life  time,  to  my  said  daughter.  Also,  twelve 
shares  in  the  Lowell  Bank,  in  Lowell,  two  shares  in  the  Nashua 
Bank,  at  Nashua,  one  share  in  the  Taylor's  Falls  Bridge  Corpora- 
tion, eight  shares  in  the  Vermont  Central  Railroad,  three  shares  in 
the  Passumpsic  Railroad,  and  three  shares  in  the  Northern  Rail- 
road, to  hold  to  her  and  her  heirs  forever." 

At  the  time  of  the  decease  of  said  John  Spaulding,  the  said 
Mary  Wells,  wife  of  the  plaintiff,  was  living,  and  then  was,  and 
has  ever  since  continued  to  be,  an  insane  person.  John  Spaulding, 
at  his  decease,  was  the  owner  of  the  said  shares,  and  the  same 
have  come  into  the  hands  of  the  defendant,  as  executor  of  his  will. 
The  plaintiff  has  duly  demanded  of  the  defendant  the  delivery  and 
assignment  to  him  of  the  shares,  and  the  defendant  has  refused 
so  to  deliver  and  assign  the  same. 

And  it  is  agreed  by  the  parties  that  all  objections  to  the  form  of 
action  and  the  sufficiency  of  the  demand  shall  be  waived,  and  that 
if  the  court  shall  be  of  opinion  that  the  plaintiif  is  entitled  to  have 
and  receive  of  the  defendant  an  assignment  and  delivery  of  the 
shares  by  virtue  of  the  provisions  of  the  will,  then  judgment  shall 
be  rendered  for  the  plaintiff  for  the  sum  of  $1,500,  and  costs; 
but  if  otherwise,  then  judgment  to  be  rendered  for  the  defendant, 
for  his  costs. 

Eastman,  J.  The  decision  of  this  case  lies  within  a  very  nar- 
row compass.  All  exceptions  to  the  form  of  the  action  and  the 
sufficiency  of  the  demand  being  waived  by  the  agreement  of  the 
parties,  the  only  questions  presented  for  our  consideration,  arise 
upon  the  construction  to  be  given  to  the  will  of  Spaulding,  and 
the  rights  of  the  husband  of  the  legatee. 

There  is  no  suggestion  that  the  event  upon  which  the  $1,000 
were  to  be  paid  to  the  wife  of  the  plaintiff,  has  yet  arrived;  and 
there  is  no  controversy  between  the  parties  in  regard  to  that  sum. 
The  action  is  brought  to  recover  only  the  shares  in  the  several 
corporations. 

The  thousand  dollars  were  dependent  upon  the  life  and  decision 
of  the  testator's  wife,  but  the  shares  he  gave  to  his  daughter,  the 
plaintiff's  wife,  "to  hold  to  her  and  her  heirs  forever."  The  be- 
quest of  the  shares  was  absolute  and  unconditional,  without  re- 
striction in  any  way  whatever.  They  were  not  given  to  her,  for 
her  sole  and  separate  use,  free  from  the  interference  and  control 
of  her  husband,  but  "to  her  and  her  heirs  forever."  They  do  not, 
therefore,  come  within  the  decision  of  Judge  of  Probate  v.  Hardv, 
3  N.  H.  147,  and  of  Pierce  and  Wife  v.  Dustin,  24  N.  H.  417.  Nor 
are  they  affected  by  the  provisions  of  the  act  of  1846. 

A  legacy  to  a  wife  does  not  vest  absolutely  in  a  husband.  He 
has  a  right  to  reduce  it  to  possessioij.,  or  permit  her  to  hold  it 
CooLEY  P.&  D.Rel.— 5 


66        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

to  her  separate  use.  If  he  does  not  exercise  his  rights  over  it,  it 
survives  to  her  in  case  of  his  death.  If  he  survives  her,  he  is 
entitled  to  administration,  and  to  recover  and  receive  a  legacy  or 
a  distributive  share  in  which  she  is  interested,  to  his  own  use. 
Parsons  v.  Parsons,  9  N.  H.  309,  321,  32  Am.  Dec.  362;  Marston 
v.  Carter  and  Trustee,  12  N.  H.  159;  Tucker  v.  Gordon,  5  N.  H. 
564. 

And  where  a  legacy  is  given  in  general  terms  to  a  wife,  with- 
out restriction,  the  husband  may  reduce  it  to  possession,  or  he 
may,  for  a  valuable  consideration,  release  or  assign  it  by  a  deed 
to  which  she  is  not  a  party.  Pierce  and  Wife  v.  Dustin,  before 
cited. 

These  authorities  settle  the  matter,  and  there  must  therefore  be 
judgment  for  the  plaintiff. 


vi 


2.  Effect  of  Modern  Statutes 


JOHNSON  V.  JOHNSON'S  COMMITTEE. 

(Court  of  Appeals  of  Kentucky,  1906.     122  Ky.  13,  90  S.  W.  964.) 

Action  by  M.  M.  Johnson's  committee  against  G.  J.  Johnson. 
Jndgment  for  plaintiff,  and  defendant  appeals. 

Paynter,  J.  Appellant,  G.  J.  Johnson,  and  Mary  M.  Johnson, 
were  married  in  1897.  They  lived  together  as  man  and  wife  until 
1899,  when  Mrs.  Johnson  went  to  the  state  of  Kansas,  where  she 
remained  for  a  year,  when  she  instituted  a  suit  against  appellant  in 
a  court  of  Kansas  for  divorce  from  the  bonds  of  matrimony.  An 
order  seems  to  have  been  entered  granting  the  divorce.  The  par- 
ties continued  to  live  apart.  There  was  some  question  as  to  the 
validity  of  the  divorce  granted  by  the  Kansas  court,  and  appel- 
lant instituted  an  action  in  the  Jessamine  circuit  court  against  ap- 
pellee for  a  divorce  from  the  bonds  of  matrimony  on  the  ground 
of  abandonment.  A  judgment  of  divorce  was  entered.  In  the 
judgment  a  recitation  was  made  as  follows:  "Both  plaintiff  and 
defendant  are  hereby  restored  to  all  property  rights  possessed  by 
each  of  them  b,efore  their  marriage." 

Subsequently  this  suit  was  instituted  by  appellee,  Mary  M.  John- 
son, against  the  appellant,  to  recover  the  possession  of  a  note  for 
$800  and  interest,  and  by  an  amended  petition  she  asked  that,  in 
the  event  the  note  could  not  be  recovered,  she  be  given  judgment 
against  the  appellant  for  the  amount  of  the  note  and  interest. 
Before  the  appellee  left  for  Kansas  she  loaned  a  man  by  tlve  name 
of  Foster  $800,  for  which  he  executed  a  note  to  her.    Subsequently 


wife's  choses  in  action  67 

appellant  surrendered  to  Foster  the  note  which  he  had  given  to 
the  wife,  and  had  another  note  executed  to  himself  by  Foster  for 
the  $800  in  lieu  of  the  surrendered  note. 

Appellant  resists  appellee's  right  to  recover  upon  the  grounds: 
(1)  That  the  wife  gave  the  note  which  Foster  had  executed  to 
her  to  him  for  money  which  he  had  expended  on  her  property, 
and  for  labor  performed  in  looking  after  it  for  her;  (2)  that  after 
the  wife  instituted  the  suit  in  Kansas  for  divorce  he  threatened 
to  make  a  defense  to  the  action,  unless  she  confirmed  the  gift  of 
the  note  previously  made  to  him ;  and  (3)  that  as  he  had  dis- 
posed of  the  note  which  had  been  executed  by  Foster  to  her,  and 
thus  converted  it  to  his  own  use  before  the  judgment  of  divorce 
in  the  Jessamine  circuit  court,  no  cause  of  action  exists  in  favor 
of  appellee  growing  out  of  the  transaction. 

Appellant  testifies  that  the  note  was  given  to  him  by  her  for 
the  money  expended  and  labor  performed,  as  stated.  The  wife  de- 
nies this  transaction  (the  testimony  of  each  was  incompetent — 
Buckel  v.  Smith's  Adm'r,  82  S.  W.  235,  26  Ky.  Law  Rep.  494), 
and  introduced  some  considerable  testimony  tending  to  show  that 
appellant  did  not  perform  the  labor  nor  expend  the  money  on  her 
property  in  Jessamine  county,  as  claimed  by  him.  We  are  of  the 
opinion  that  he  fails  to  establish  that  the  note  was  given  to  him 
for  the  consideration  claimed  by  him. 

The  court  sustained  a  demurrer  to  that  paragraph  of  defendant's 
answer  in  which  he  pleaded  that  she  gave  him  the  note  to  induce 
him  not  to  interpose  a  defense  to  the  action  in  Kansas.  We  are 
of  opinion  that  the  court  did  not  err  in  sustaining  the  demurrer. 
The  facts,  as  detailed,  did  not  constitute  a  good  consideration. 
Such  an  agreement  was  against  public  policy.  From  the  aver- 
ments in  the  pleading  the  gift  was  not,  as  a  matter  of  fact,  an  ad- 
justment of  property  rights,  but  simply  an  inducement  to  forbear 
to  interpose  a  defense  to  the  action  for  divorce,  which,  he  states, 
would  have  prevented  her  from  obtaining  it. 

It  is  urged  by  counsel  for  appellant  that,  if  the  transaction  is 
against  public  policy,  then  the  law  will  leave  the  parties  where  they 
were  found;  that  equity  will  not  relieve  either  party  from  such  a 
transaction.  The  facts  averred  do  not  make  a  case  for  the  appli- 
cation of  that  principle  of  equity.  It  was  simply  a  void  contract. 
If,  at  the  time  the  contract  was  made,  the  appellee  was  entitled 
to  recover  the  note  or  the  amount  of  it,  her  cause  of  action  was 
not  destroyed  by  reason  of  that  agreement.  It  being  void,  it  left 
the  parties  with  rights  as  fixed  by  law. 

As  we  have  said,  it  is  insisted  that,  under  the  judgment  of  di- 
vorce in  the  Jessamine  circuit  court,  it  simply  restored  to  the  par- 
ties the  property  rights  possessed  by  each  of  them  before  their 
marriage,  and  that  the  plaintiff  is  not  entitled  to  recover  the  note 
or  the  amount  of  it.    The  language  of  the  judgment  does  not  con- 


68  RIGHTS  IN   PROPERTY  AS  AFFECTED  BY  COVERTURE 

form  to  the  requirements  of  section  425,  Civ.  Code"  Prac.  That 
section  reads  as  follows:  "Every  judgment  for  a  divorce  from  the 
bond  of  matrimony  shall  contain  an  order  restoring  any  property, 
not  disposed  of  at  the  commencement  of  the  action,  which  either 
party  may  have  obtained,  directly  or  indirectly,  from  or  through 
the  other,  during  marriage,  in  consideration  or  by  reason  thereof; 
and  any  property  so  obtained,  without  valuable  consideration,  shall 
be  deemed  to  have  been  obtained  by  reason  of  marriage.  The  pro- 
ceedings to  enforce  this  order  may  be  by  petition  of  either  party, 
specifying  the  property  which  the  other  has  failed  to  restore ;  and 
the  court  may  hear  and  determine  the  same  in  a  summary  manner, 
after  ten  days'  notice  to  the  party  so  failing."  This  section  of  the 
Code  was  enacted  at  a  time  when  the  husband  was  entitled  to  the 
personal  property  of  his  wife,  providing  he  reduced  it  to  his  pos- 
session. Under  this  section  of  the  Code,  property  was  not  to  be 
restored  which  had  been  disposed  of  at  the  commencement  of  the 
action.  Since  the  enactment  of  this  section  of  the  Code  the  Leg- 
islature has  enacted  statutes  regulating  the  rights  of  husbands  and 
wives  in  each  other's  property  entirely  different  from  the  statute 
which  was  in  force  at  the  time  of  the  adoption  of  the  Code,  from 
which  we  have  quoted,  section  425. 

Section  2127,  Ky.  St.  1903,  reads  as  follows:  "Marriage  shall 
give  to  the  husband,  during  the  life  of  the  wife,  no  estate  or  in- 
terest in  the  wife's  property,  real  or  personal,  owned  at  the  time 
or  acquired  after  the  marriage.  During  the  existence  of  the  mar- 
riage relation  the  wife  shall  hold  and  own  all  her  estate  to  her 
separate  and  exclusive  use,  and  free  from  the  debts,  liabilities  or 
control  of  her  husband.  No  part  of  a  married  woman's  estate  shall 
be  subjected  to  the  payment  or  satisfaction  of  any  liability,  upon 
a  contract  made  after  marriage,  to  answer  for  the  debt,  default  or 
misdoing  of  another,  including  her  husband,  unless  such  estate 
shall  have  been  set  apart  for  that  purpose  by  deed  of  mortgage  or 
other  conveyance;  but  her  estate  shall  be  liable  for  her  debts  and 
responsibilities  contracted  or  incurred  before  marriage,  and  for  such 
contracted  after  marriage,  except  as  in  this  act  provided."  Under 
this  section  of  the  statute  appellant  would  not  have  any  interest 
in  or  control  of  the  personal  property  of  appellee,  whether  she 
owned  it  at  the  time  of  her  marriage  or  after  the  marriage.  The 
fact  that  he  got  possession  of  the  $800  note  without  valuable  con- 
sideration would  not  have  divested  the  appellee  of  her  right  to  it. 
The  mere  reduction  of  it  to  his  possession  would  not  have  given 
him  any  property  rights  in  or  to  the  note.  Had  she  died  while 
the  husband  had  the  note  in  possession,  it  would  not  for  that  reason 
have  belonged  to  him.  Had  he  refused  to  surrender  it  to  her  in 
her  lifetime,  she  could,  by  appropriate  action,  have  compelled  him 
to  do  so.  If  the  husband  had  not  acquired  the  right  to  the  note 
by  contract,  although  the  judgment  for  divorce  had  not  provided 


wife's  estates  of  i:?heritance  69 

for  the  restoration  of  their  respective  property,  still  she  could  have 
maintained  the  action  to  recover  the  note  or  its  value,  if  he  had 
converted  it  to  his  own  use.  The  mere  fact  that  he  disposed  of 
the  note  before  the  judgment  of  divorce  does  not  prevent  appellee 
from  recovering  the  note  or  its  equivalent. 

That  provision  of  section  425  of  the  Code  to  the  effect  that  prop- 
erty is  not  to  be  restored  which  had  been  previously  disposed  of 
is  not  operative  as  against  the  rights  of  the  wife  created  and  fixed 
by  section  2127,  Ky.  St.  1903.  So  her  right  to  maintain  this  action 
is  independent  of  the  judgment  granting  the  appellant  a  divorce. 
It  exists  in  virtue  of  section  2127,  Ky.  St.  1903.  Although  the  court 
might  have  adjudged,  under  section  425  of  the  Code  of  Practice, 
that  the  appellant  would  not  have  been  compelled  to  account  to 
the  appellee  for  the  amount  of  the  note,  had  he  converted  it  to 
his  own  use  previous  to  the  commencement  of  the  action  for  di- 
vorce, still,  under  section  2127,  Ky.  St.  1903,  which  must  be  read 
in  connection  with  the  Code  section  supra,  this  action  can  be  main- 
tained. In  the  case  of  Price  v.  Price,  78  S.  W.  888,  25  Ky.  Law 
Rep.  1804,  this  court  held  that  a  husband  can  become  indebted  to 
the  wife  under  the  act  of  1894,  and  execute  to  her  an  enforceable 
obligation.  This  declaration  was  made  in  an  action  wherein  the 
wife  sought  to  recover  from  the  husband  the  amount  of  the  note 
which  he  had  executed  to  her  previous  to  the  commencement  of 
the  action  for  divorce.  The  court  based  her  right  to  recover  upon 
the  statute.  The  court  di-d  not  allow  her  to  recover  simply  because 
it  was  a  note  creating  an  obligation,  but  the  recovery  could  have 
been  had  on  any  legal  liability  which  the  husband  had  incurred 
to  the  wife  previous  to  the  commencement  of  the  action  for  divorce. 

Judgment  affirmed. 


IV.  Wife's  Estates  of  Inheritance  * 


CLAPP  V.  INHABITANTS  OF  STOUGHTON. 
(Supreme  Judicial  Court  of  Massachusetts,  1830.     10  Pick.  463.) 

Wilde,  J.  The  plaintiff  claims  as  administrator  of  the  estate 
of  Ann  Monk,  and  in  her  right  as  she  was  one  of  the  heirs  of  Abi- 
gail Drake,  who  by  the  last  will  and  testament  of  Lemuel  Drake, 
her  husband,  was  made  the  residuary  devisee  and  legatee  of  his 
estate.  A  portion  of  his  estate,  real  and  personal,  was  given  to 
the  defendants  upon  a  condition  which  has  not  been  performed. 

*  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.(3(l  Ed.)§  ~A. 


70        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURB 

In  this  portion  of  his  estate  a  contingent  interest  vested  in  Abi- 
gail Drake,  although  the  contingency  upon  which  it  depended  did 
not  happen  until  after  her  death.  It  was  a  vested  right,  subject 
to  a  contingency,  which  was  transmissible  to  her  heirs  and  rep- 
resentatives, and  in  them  it  became  vested  in  possession  on  the  for- 
feiture of  the  estate  by  the  defendants.  Chauncy  v.  Graydon,  2 
Atk.  621 ;  Massey  v.  Hudson,  2  Meriv.  133.  After  the  death  of 
Abigail  Drake,  the  defendants'  right  became  forfeited  by  their  non- 
compliance with  the  condition,  and  the  real  estate  has  been  re- 
covered by  her  heirs.  This  action  is  now  brought  to  recover  Ann 
Monk's  share  of  the  personal  estate  or  the  legacy,  and  also  of  the 
profits  of  the  real  estate  received  by  the  defendants. 

In  regard  to  the  legacy,  the  law  is  clear  that  it  belongs  to  Abi- 
gail Drake's  administrator,  and  consequently  that  no  action  will 
He  for  it  in  the  name  of  her  heir.  It  has  been  said,  and  said  truly, 
that  the  interest  did  not  vest  in  Abigail  Drake  in  possession.  But 
it  by  no  means  follows  that  it  was  not  transmissible  to  her  repre- 
sentative, for  it  is  sufficient  for  this  purpose  that  the  right  vested. 
All  contingent  as  well  as  absolute  interests  in  personal  property 
pass  to  the  executor  or  administrator;  and  in  like  manner  all  choses 
in  action  pass,  although  they  may  remain  depending  on  a  contin- 
gency during  the  life  of  the  testator  or  intestate.  But  if  it  were 
otherwise  it  would  not  give  any  right  of  action  to  the  plaintiff. 
He  claims  in  right  of  one  of  the  heirs;  but  they  had  nothing  to 
do  with  the  personal  estate  or  personal  contracts  of  the  intestate; 
and  as  heirs  they  could  maintain  no  personal  action  in  her  right. 

The  claim  for  a  share  of  the  profits  of  the  real  estate  depends 
on  different  principles,  respecting  which  there  are  greater  doubts. 
These  profits  all  accrued  after  the  death  of  Abigail  Drake,  and  if 
Ann  Monk  had  been  unmarried  at  the  time  they  accrued,  this  ac- 
tion might  well  lie.  But  it  appears  that  at  that  time  she  was  a 
feme  covert,  and  the  question  is,  whether  the  profits  of  her  real 
estate  during  the  marriage  belonged  absolutely  to  the  husband, 
or  as  they  were  not  actually  reduced  to  possession  by  him,  whether 
an  action  to  recover  them  did  not  survive  to  the  wife.  It  is  some- 
what surprising  to  find  that  this  question  does  not  appear  to  be 
entirely  settled.  There  are  conflicting  opinions  and  decisions;  and 
it  would  be  but  an  unprofitable  labor,  I  fear,  to  attempt  to  rec- 
oncile them.  The  better  opinion  seems  to  be,  that  these  profits 
belonged  absolutely  to  the  husband ;  that  he  had  a  right  to  sue  for 
them  alone ;  and  that  no  right  of  action  survived  to  the  wife.  By 
the  marriage  the  husband  becomes  the  absolute  owner  of  all  the 
wife's  personal  property,  and  acquires  a  full  and  perfect  title  to 
the  rents  and  profits  of  her  real  estate  during  the  coverture.  They 
are  considered  in  law  as  one  person,  the  husband  being  the  head. 
The  wife  therefore,  during  the  coverture,  can  make  no  contract 
to  her  own  use,  and  if  a  note  or  bond  is  given  to  her,  the  prop- 


wipe's  estates  op  inheritance  71 

erty  in  it  immediately  vests  in  the  husband.  Barlow  v.  Bishop,  1 
East,  432.  And  she  can  acquire  no  personal  property  in  her  own 
right,  for  if  she  obtains  any,  by  gift  or  otherwise,  it  becomes  im- 
mediately the  property  of  the  husband,  though  not  in  his  posses- 
sion. Com.  Dig.  Baron  and  Feme,  E,  3.  The  husband  also  has 
an  absolute  right  to  the  services  of  his  wife,  and  to  all  beneficial 
interests  accruing  thereby. 

The  right  to  recover  compensation  for  such  services  vests  in 
the  husband  alone,  and  does  not  survive  to  the  wife  on  the  death 
of  the  husband.  In  an  action,  however,  the  husband  may  join  the 
wife,  and  if  judgment  is  recovered  in  their  names,  and  she  sur- 
vives, the  judgment  will  survive  to  her.  The  recovery  of  judg- 
ment in  such  a  case  operates  as  a  contingent  gift  from  the  hus- 
band to  the  wife,  to  take  effect  if  she  should  survive.  Oglander  v. 
Baston,  1  Vern.  396.  The  same  doctrine  applies  to  the  rents  and 
profits  of  the  wife's  real  estate,  and  to  actions  of  trespass  on  her 
lands  during  the  coverture.  The  husband  may  sue  alone,  or  ac- 
cording to  the  current  of  the  authorities,  the  wife  may  be  joined. 
Com.  Dig.  Baron  and  Feme,  W,  X.  But  it  by  no  means  follows, 
that  because  she  may  be  joined  in  an  action,  the  cause  of  action 
will  survive  to  her,  if  she  is  not  joined,  or  no  action  is  brought 
during  the  lite  of  the  husband.  I  think  the  true  rule  is,  that  in  all 
cases  where  the  cause  of  action  by  law  survives  to  the  wife,  the 
husband  and  wife  must  join,  and  he  cannot  sue  alone.  This  rule 
will  go  further  than  any  other,  to  reconcile  all  the  cases.  In  all 
actions  for  choses  in  action  due  to  the  wife  before  marriage,  the 
husband  and  wife  must  join ;  and  among  all  the  conflicting  cases, 
I  apprehend  not  one  can  be  found  in  which  it  was  held  that  the 
husband  could  sue  alone,  where  the  cause  of  action  would  clearly 
survive  to  the  wife.  Now  in  the  present  case  it  might  seem  to  me 
well  settled,  that  the  husband  of  Ann  Monk  might  have  main- 
tained an  action  in  his  own  name  for  the  profits  of  the  real  estate 
received  by  the  defendants.  The  profits  belonged  to  him,  and  they 
were  received  to  his  use ;  so  that  the  law  implies  a  promise  on  their 
part  to  pay  them  over  to  him.  But  there  was  no  promise,  express 
or  implied,  to  pay  them  over  to  the  wife. 

Plaintiff  nonsuit. 


\/ 


ARNOLD  V.  LIMEBURGER. 

(Supreme  Court  of  Georgia,  1905.     122  Ga.  72,  49  S.  E.  812.) 

On  May  18,  1903,  W.  F.  Arnold,  F.  M.  Parrish,  and  Barney  Ar- 
nold filed  a  petition  for  partition  against  W.  J.  Limeburger.  The 
property  described  was  two  lots  of  land.  It  was  alleged  that  W. 
F.  Arnold  was  the  owner  of  a  seven-eighths  of  one-fourth  undi- 
vided interest,  F.  M.  Parrish  the  owner  of  a  one-fourth  undivided 


72  RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

interest,  and  Barney  Arnold  the  owner  of  a  one-eighth  of  one- 
fourth  undivided  interest,  and  that  the  defendant  was  the  owner 
of  the  remaining  one-half  undivided  interest.  The  defendant  filed 
an  answer,  in  which  he  denied  that  the  plaintiffs  had  any  interest 
in  the  land,  and  alleged  that  he  was  the  sole  owner  of  the  same. 
At  the  trial  the  undisputed  facts  were  as  follows: 

Joshua  Limeburger  died  in  possession  of  the  land  in  controversy 
May  13,  1848.  He  left  surviving  him  a  widow,  Salomy  Lime- 
burger,  and  seven  children,  to  wit,  Washington,  the  defendant, 
Woodbury,  Louvinia,  Seletie,  Marion,  Jasper,  and  Newton.  The 
land  was  assigned  to  the  widow  about  1850  as  dower,  the  record 
not  disclosing  the  exact  date.  Louvinia  married  Arnold  in  1849,  but 
it  does  not  appear  distinctly  whether  the  marriage  took  place  before 
or  after  dower  was  assigned.  Seletie  married  Parrish  in  1857.  On 
April  1,  1871,  C.  W.  Arnold,  the  husband  of  Louvinia,  and  Wiley 
Parrish,  the  husband  of  Seletie,  Woodbury  Limeburger,  and  Sa- 
lomy, widow  of  Joshua  Limeburger,  joined  in  a  deed  conveying 
the  land  in  fee  simple  to  W.  J.  Limeburger,  the  defendant,  for 
an  expressed  consideration  of  $1,800.  Mrs.  Arnold  and  Mrs.  Par- 
rish were  not  parties  to  this  deed,  but  it  appears  that  they  knew  of 
the  execution  of  the  deed  either  at  the  time  or  shortly  thereafter. 
The  widow  of  Joshua  Limeburger  died  on  December  31,  1886.  Mrs. 
Arnold  died  September  1,  1888,  and  Mrs.  Parrish  is  still  living. 
Arnold  is  dead,  but  the  record  does  not  disclose  the  date  of  his 
death.  The  case  was  presented  upon  the  theory  that  he  died  be- 
fore his  wife.  Mrs.  Arnold  left,  surviving  her,  eight  children,  and 
seven  are  still  in  life ;  the  plaintiffs  W.  F.  and  Barney  Arnold  be- 
ing among  that  number.  Barney  Arnold  claims  a  one-eighth  in- 
terest in  the  property  as  an  heir  of  his  mother.  W.  F.  Arnold 
claims  a  seven-eighths  interest — one-eighth  as  an  heir  of  his  mother, 
five-eighths  under  conveyances  from  other  children,  and  one-eighth 
under  a  conveyance  from  James  M.  Dees  and  others,  who  are  the 
children  of  a  deceased  daughter  of  Mrs.  Arnold.  F.  M.  Parrish 
claims  under  a  deed  from  Mrs.  Parrish.  The  deeds  under  which 
W.  F.  Arnold  and  F.  M.  Parrish  claim  were  all  executed  in  1903. 
The  court  directed  a  verdict  for  the  defendant,  and  the  plaintiffs 

excepted. 

Cobb,  J."*  The  land  in  controversy  was  a  part  of  the  estate  of 
the  father  of  Mrs.  Arnold  and  Mrs.  Parrish.  Their  husbands  had 
no  interest  therein  except  such  as  they  acquired  by  virtue  of  their 
marital  rights.  The  contest  is  between  those  claiming  under  the 
husbands  and  those  claiming  under  the  wives.  The  death  of  the 
father  and  the  consummation  of  the  marriages  occurred  before  the 
Code  was  adopted.  Upon  the  death  of  the  father,  each  of  the 
daughters  became  entitled  to  a  one-seventh  interest  in  his  estate. 

6  Part  of  tbe  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


wife's  estates  op  inheritance  73 

Upon  the  death  of  the  three  brothers,  each  of  them  became  entitled 
to  a  further  interest  in  the  property  as  heirs  of  their  brothers.  As 
one  of  the  brothers  died  before  the  Code  was  adopted,  and  the 
other  two  after,  the  case,  so  far  as  it  relates  to  the  interest  ac- 
quired from  the  father  and  one  of  the  brothers,  is  to  be  determined 
by  the  law  as  it  existed  prior  to  the  adoption  of  the  Code,  and  as 
to  the  interest  acquired  from  the  other  two  brothers,  as  laid  down 
in  the  Code.  Prior  to  the  adoption  of  the  Code,  the  law  of  Geor- 
gia was  that,  so  far  as  the  marital  rights  of  a  husband  were  con- 
cerned, realty  and  personalty  were  upon  the  same  footing-,  and  that 
title  to  property  of  either  class  which  was  in  possession  of  the 
wife  at  the  time  of  the  marriage  immediately  vested  in  the  hus- 
band; but  if  the  wife  was  not  in  possession,  the  marital  rights  of 
the  husband  did  not  attach,  as  against  the  wife's  right  of  survivor- 
ship, and  as  against  her  heirs  in  case  of  her  death,  unless  the  hus- 
band had  reduced  the  property  to  possession  during  his  lifetime 
if  she  survived  him,  and  during  her  lifetime  if  he  survived  her. 

Under  the  Code  of  1863  it  seems  that  real  estate  owned  by  the 
wife  at  the  time  of  the  marriage  vested  immediately  in  the  husband 
without  reference  to  possession,  but  property  acquired  by  the  wife 
during  coverture  did  not  vest  in  the  husband  until  reduced  to  pos- 
session by  him.  Code  1863,  §§  1701,  1702.  It  has  been  held  that 
the  husband's  right  to  reduce  to  possession  the  property  of  the 
wife  which  had  been  acquired  by  her  prior  to  1866  was  not  affected 
by  the  passage  of  the  married  woman's  act  of  that  year,  and  that 
this  right  might  be  exercised  thereafter.  Archer  v.  Guill,  67  Ga. 
195;  Grote  v.  Pace,  71  Ga.  231  (2)  ;  De  Vaughn  v.  McLeroy,  82 
Ga.  687,  10  S.  E.  211  (5).  It  will  therefore  be  seen  that,  to  deter- 
mine the  question  whether  the  husbands  had  a  right  to  convey  the 
property  in  1871,  depended  upon  whether  they  had  reduced  to  pos- 
session the  interests  of  their  wives  in  the  property  which  they  at- 
tempted to  convey ;  the  old  law  in  reference  to  real  estate  owned 
by  the  wife  at  the  time  of  the  marriage,  and  the  Code  in  reference 
to  property  acquired  during  coverture,  each  providing  that  the  hus- 
band's right  to  convey  the  wife's  property  was  dependent  upon 
whether  he  had  reduced  it  to  possession.  If  the  wife  was  at  the 
time  of  the  marriage  in  possession  of  the  property,  or  if  she  ac- 
quired possession  at  any  time  during  coverture,  or  if  property  which 
was  acquired  during  coverture  came  into  her  possession,  or  prop- 
erty of  either  class  came  during  coverture  into  the  possession  of 
the  husband,  then  the  same  was  reduced  to  possession,  within  the 
meaning  of  the  law,  and  the  husband  had  a  right  to  convey  it. 

Both  Mrs.  Arnold  and  Mrs.  Parrish  were  prior  to  their  mar- 
riages actually  upon  the  land,  living  with  their  mother,  between  the 
time  of  the  death  of  their  father  and  the  time  that  dower  was  set 
apart;  but  this  did  not,  in  law,  place  them  in  possession  of  any 
interest  in  the  land,  their  interest  being  simply  a  share  in  an  un- 


74        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURH 

distributed  estate.  Hooper  v.  Howell,  50  Ga.  165 ;  Sterling  v.  Sims, 
72  Ga.  51.  After  the  dower  was  set  apart  they  were  also  upon  the 
land,  living  with  their  mother;  but  they  were  not  then  in  pos- 
session of  any  interest  in  the  land,  because  the  possession  was  in 
the  mother  as  tenant  in  dower,  and  their  actual  presence  upon  the 
land  would  not  put  them  in  possession  of  the  reversion,  which  could 
be  reduced  to  possession  only  after  the  termination  of  the  dower 
estate.  So  that  under  no  view  of  the  case  could  their  presence  upon 
the  land,  either  before  or  after  dower  was  set  apart,  be  treated,  in 
law,  as  a  possession  of  any  interest  in  the  land.  If  the  reversion 
had  been  sold  during  the  existence  of  the  dower  estate,  the  right 
to  the  proceeds  of  the  sale  would  have  been  a  chose  in  action  sur- 
viving to  the  wife,  in  the  event  her  husband  died  before  reducing 
the  proceeds  to  possession.     Sterling  v.  Sims,  72  Ga.  51. 

The  widow  of  Joshua  Limeburger  did  not  die  until  1886,  and 
the  right  of  the  daughters  to  take  possession  of  their  interests  in 
the  land  did  not  accrue  until  that  date.  The  record  not  disclosing 
anything  which  would  establish  a  possession  by  the  wives  at  the 
time  of  their  marriages,  or  a  possession  acquired  during  coverture, 
the  husbands  had  no  right  to  convey  the  land  in  right  of  their  wives 
in  1871,  when  the  deed  relied  upon  by  the  defendant  was  executed; 
Hudgins  V.  Chupp,  103  Ga.  484,  30  S.  E.  301.  In  the  elaborate 
opinion  by  Mr.  Justice  Little  in  the  case  just  cited  there  will  be 
found  many  of  the  cases  decided  by  this  court  relating  to  this  sub- 
ject. In  addition  to  those  cases,  see  Sayre  v.  Flournoy,  3  Ga.  541 ; 
Rogers  v.  Cunningham,  51  Ga.  40.  In  Smith  v.  Atwood,  14  Ga. 
402  (7),  the  court  seems  to  have  overlooked  the  act  of  1785  which 
declared  that  the  husband's  marital  rights  should  attach  to  land 
only  under  the  same  circumstances  as  they  would  attach  to  per- 
sonal property ;  that  is,  only  in  the  event  the  husband  reduced  the 
land  to  possession.     ♦     *     * 


V.  Estates  by  the  Entirety  • 


FROST  v.  FROST. 

(Supreme  Court  of  Missouri,  1906.    200  Mo.  474,  98  S.  W.  527, 118  Am. 

St.   Rep.   689.) 

Bill  by  Rachel  L.  Frost  against  Daniel  B.  Frost  to  establish  a 
trust  in  lands  alleged  to  have  been  purchased  with  joint  funds. 
From  a  judgment  for  plaintiff,  defendant  appeals. 

6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  59. 


ESTATES  BY  THE  ENTIRETY  75 

Valliant,  J.'  Plaintiff  is  the  wife  of  defendant.  There  are  two 
counts  in  her  petition:  In  the  first  it  is  alleged  that  the  plaintiff 
and  defendant  jointly  owned  certain  land  in  Clinton  county,  each 
owning  an  undivided  half,  which  they  sold  for  $3,000;  that  de- 
fendant collected  and  appropriated  to  his  own  use  the  whole  sum; 
therefore  plaintiff  asks  judgment  for  $1,500,  and  interest.  In  the 
second  count  it  is  alleged  that  in  1888  plaintiff  and  defendant,  being 
then  husband  and  wife,  and  residing  in  Missouri,  each  owning  "cer- 
tain moneys"  (how  much  each  owned  not  stated),  invested  those 
moneys  in  certain  real  estate  in  Clinton  county,  "taking  the  title  to 
said  real  estate  in  their  names  jointly,  each  owning  an  undivided 
half  interest  therein";  that  in  1901  by  their  joint  deed  they  sold 
the  Clinton  county  land  for  $3,000,  all  of  which  sum  came  into 
the  possession  of  defendant,  and  with  it  he  purchased  200  acres  in 
Cass  county  at  the  price  of  $6,000,  paying  therefor  $4,000  cash,  and 
executing  a  deed  of  trust  for  the  remaining  $2,000;  that  of  the 
$4,000  cash,  $3,000  was  the  proceeds  of  the  Clinton  county  land, 
one-half  of  which  plaintiff  avers  was  her  own  separate  estate;  that 
at  the  time  of  the  purchase  of  the  Cass  county  land  it  was  agreed 
between  the  plaintiff  and  defendant  "that  the  deed  should  be  made 
to  plaintiff  and  defendant  jointly,  giving  to  each  one  his  respec- 
tive share  or  interest,  in  the  same  manner  that  the  title  to  the 
real  estate  in  said  Clinton  county  was  held,"  but  that,  in  violation 
of  that  agreement,  defendant,  without  the  knowledge  or  consent  of 
plaintiff,  took  the  title  in  his  own  name,  in  consequence,  by  im- 
plication of  law,  a  trust  has  resulted  in  plaintiff's  favor.  The  prayer 
is  that  defendant  be  decreed  to  have  taken  the  title,  to  the  extent 
that  her  $1,500  represent  the  purchase  money  in  the  land,  in  trust 
for  her  use.  There  was  also  a  prayer  for  general  relief.  The  an- 
swer was  a  general  denial,  except  the  admission  that  plaintiff  and 
defendant  were  husband  and  wife. 

The  cause  was  tried  by  the  court  without  a  jury.  There  was 
a  finding  of  the  issues  for  the  defendant  on  the  first  count,  and 
judgment  accordingly,  from  which  there  was  no  appeal ;  that  count 
therefore  is  out  of  our  way.  On  the  second  count  the  finding  and 
judgment  were  for  the  plaintiff,  the  judgment  being  that  the  plain- 
tiff recover  of  defendant  $1,400  and  interest,  viz.,  $1,436.63,  for 
which  execution  was  awarded,  and  also  that  for  satisfaction  of  the 
same  the  plaintiff  should  have  a  lien  on  the  Cass  county  land. 
From  that  judgment,  the  defendant  has  appealed. 

At  the  trial  the  plaintiff  endeavored  to  prove  that  some  of  her 
money  went  into  the  purchase  of  the  Clinton  county  land.  Her 
proof  on  that  point,  however,  was  very  vague  and  unsatisfactory. 
If  she  were  here  attacking  the  deed  to  the  Clinton  county  land, 
seeking  to  reform  it  so  as  to  establish  a  title  by  resulting  trust 

7  Part  of  the  opinion  is  omitted. 


76  RIGHTS   IN   PROPERTY   AS  AFFECTED   BY   COVERTURE 

in  her  favor  on  the  ground  that  her  husband  used  her  money  to 
purchase  the  land,  her  suit  would  fail,  because  her  proof  is  not 
sufficient.  But  such  is  not  the  character  of  this  suit;  she  is  not 
attacking  the  Clinton  county  deed,  and  the  defendant  is  not  dis- 
puting its  terms.  Here  the  plaintiff  comes  alleging  that  she  was 
the  owner  in  fee  as  her  separate  statutory  estate  of  an  individual 
half  of  the  Clinton  county  land,  and  relies  on  the  deed  conveying 
that  land  to  her  and  her  husband  to  prove  that  title.  She  says 
in  her  petition  that,  when  that  land  was  sold,  it  was  agreed  be- 
tween her  and  her  husband  that  the  proceeds  should  be  invested  in 
the  Cass  county  land,  "and  that  the  deed  should  be  made  to  the 
plaintiff  and  defendant  jointly,  giving  to  each  one  his  respective 
share  or  interest  in  the  same  manner  that  the  title  to  the  real  es- 
tate in  Clinton  county  was  held."  She  stands  on  that  Clinton 
county  deed  as  it  is,  and  avers  that  it  gave  her  an  undivided  half 
of  the  land  as  her  separate  estate.  But,  when  the  deed  was  pro- 
duced in  evidence,  it  showed  that  the  title'was  not  as  she  alleged, 
but  that  it  vested  in  her  and  her  husband  as  an  estate  in  entirety. 
Neither  she  nor  her  husband  owned  a  half  interest,  they  each 
owned  the  whole  interest  while  both  should  live,  and  the  survivor 
would  have  the  whole  when  either  should  die.  AVhile  they  both 
lived  in  the  marital  relation  she  would  have  the  equal  enjoyment 
of  the  property  with  her  husband,  and,  in  that  qualified  sense,  it 
might  perhaps  be  "said  she  had  a  half  interest,  but,  in  addition  to 
that  right,  she  had  the  contingent  prospect  of  owning  it  all,  and 
of  that  contingent  right  her  husband  could  not  deprive  her. 

Washburn,  speaking  of  estates  in  entirety,  says:  "But,  if  the 
estate  is  conveyed  to  them  originally  as  husband  and  wife,  they  are 
neither  tenants  in  common  nor  properly  joint  tenants,  though  hav- 
ing the  right  of  survivorship,  but  are  what  are  called  'tenants  by 
entirety.'  While  such  estates  have,  like  a  joint  tenancy,  the  qual- 
ity of  survivorship,  they  differ  from  that  in  this  essential  respect, 
that  neither  can  convey  his  or  her  interest  so  as  to  aft'ect  the  right 
of  survivorship  in  the  other.  They  are  not  seised,  in  the  eye  of 
the  law,  of  moieties,  but  of  entireties."  1  Washburn,  R.  P.  (6th 
Ed.)  p.  562.  The  common-law  doctrine  of  estates  in  entirety  is 
the  law  of  this  state.  Hall  v.  Stephens,  65  Mo.  670,  27  Am.  Rep. 
302 ;  Bank  v.  Fry,  168  Mo.  492,  68  S.  W.  348.  The  text-writer 
last  above  quoted,  on  the  same  subject,  adds  that  on  the  death  of 
either  the  survivor  does  not  acquire  a  new  title,  but  holds  only  the 
same  title  which  he  or  she  took  in  the  beginning,  freed  of  the  con- 
tingency. An  estate  in  entirety  is  not  a  joint  tenancy  in  which 
each  holds  an  individual  right.  A  joint  tenant  may  destroy  the 
joint  tenancy  and  thereby  destroy  the  right  of  survivorship  by  con- 
veying his  right  to  a  third  person,  in  which  event  his  former  co- 
tenant  and  the  third  person  to  whom  the  conveyance  is  made  be- 
come, as  to  each  other,  tenants  in  common.     But  neither  the  hus- 


ESTATES   BY   THE    ENTIRETY  7T 

band  nor  the  wife  in  an  estate  of  entirety  can  so  destroy  the  char- 
acter of  the  estate  as  to  prevent  the  survivor  becoming  the  sole 
owner.  An  estate  in  entirety  is  a  peculiar  common-law  estate  some- 
tlines  said  to  be  founded  on  the  common-law  doctrine  that  the 
husband  and  wife  are  one.  Perhaps  it  will  not  do  to  say  that  the 
estate  rests  entirely  on  that  foundation,  because  sometimes  we  say 
that,  when  the  reason  for  a  certain  law  ceases,  the  law  founded 
on  the  reason  also  ceases. 

Modern  legislation  has  done  much  to  destroy  the  unity  of  hus- 
band and  wife,  yet,  in  spite  of  such  legislation,  it  has  been  held 
in  this  state  and  elsewhere  that  estates  in  entirety  remain  as  at 
common  law.  Hall  v.  Stephens,  65  Mo.  670,  27  Am.  Rep.  302; 
Bains  V.  Bullock,  129  Mo.  117,  31  S.  W.  342;  Bank  v.  Fry,  168 
Mo.  492,  68  S.  W.  348;  Wilson  v.  Frost,  186  Mo.  311,  85  S.  W. 
375,  105  Am.  St.  Rep.  619;  Baker  v.  Stewart,  40  Kan.  442,  19 
Pac.  904,  2  L.  R.  A.  434,  10  Am.  St.  Rep.  213.  Whilst  estates  in 
entirety  originated  in  the  common  law  and  were,  therefore,  in  har- 
mony with  the  ancient  theory  that  the  husband  and  wife  were  one, 
yet  that  such  estates  did  not  arise  as  a  necessity  from  that  theory 
is  shown  by  the  fact  that  the  common  law  also  recognized  that 
the  husband  and  wife  might  become  tenants  in  common.  1  Wash- 
burn, R.  P.  (6th  Ed.)  p.  562;  4  Kent  (14th  Ed.)  p.  414.  There- 
fore, the  married  woman's  statutes,  by  dispelling  the  idea  of  the 
unity  of  husband  and  wife,  do  not  abolish  or  alter  the  character 
of  estates  in  entirety.     *     *     * 

Under  the  facts  of  the  case  at  bar,  it  is  not  necessary  for  us  to 
decide  whether  or  not  under  our  married  woman's  statutes  the  hus- 
band has  been  shorn  of  the  exclusive  right  to  the  possession  and 
control  of  the  property  held  as  an  estate  in  entirety.  It  is  suffi- 
cient to  say,  as  we  do  say,  that  the  title  in  such  an  estate  is  as  it 
was  at  common  law,  neither  husband  nor  wife  has  an  interest  in 
the  property  to  the  exclusion  of  the  other.  Each  owns  the  whole 
while  both  live,  and  at  the  death  of  either  the  other  continues  to 
own  the  whole,  freed  from  the  claim  of  any  one  claiming  under 
or  through  the  deceased.  Our  married  woman's  statute,  section 
4340,  Rev.  St.  1899,  after  declaring  what  shall  be  her  separate  prop- 
erty says  that  it  shall  be  "under  her  sole  control."  The  lawmakers 
did  not  have  estates  in  entirety  in  mind  when  they  wrote  that  sec- 
tion. There  are  decisions  of  this  court  which  say  that,  if  a  hus- 
band should  invest  his  wife's  money  without  her  written  consent 
in  the  purchase  of  land,  taking  the  title  in  the  names  of  himself 
and  his  wife  so  as  to  create  an  estate  in  entirety,  she  may,  in  a 
suit  in  equity,  have  a  resulting  trust  declared  in  her  favor,  and  the 
estate  in  entirety  be  set  aside  and  the  title  vested  in  her  or  in  a 
trustee  for  her  use.  Jones  v.  Elkins,  143  Mo.  647,  45  S.  W.  261 ; 
Johnston  v.  Johnston,  173  Mo.  91,  72>  S.  W.  202,  61  L.  R.  A.  166, 
96  Am.  St.  Rep.  486.     But  those  decisions  do  not  proceed  on  the 


78        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

theory  that  the  common-law  estate  in  entirety  has  been  abolished 
or  altered  in  any  respect.  They  proceed  on  exactly  the  same  prin- 
ciple that  would  govern  in  a  case  where  the  husband,  under  like 
circumstances,  had  taken  the  title  in  his  own  name  exclusively.  It 
would  be  a  fraud  of  the  same  character  on  the  wife,  if  the  husband 
should  take  a  deed  in  the  name  of  himself  and  her  when  it  should 
have  been  taken  in  her  name  alone,  as  it  would  be  if  he  had,  under 
like  circumstances,  taken  it  in  his  own  name  alone.  And,  by  the 
same  principle,  if  the  husband  takes  the  proceeds  of  property  that 
belonged  to  him  and  his  wife  in  entirety  and  invests  the  same  in 
other  land  taking  the  title  to  himself  alone,  a  court  of  equity,  at 
the  suit  of  the  wife,  will  raise  a  resulting  trust  in  her  favor,  and 
decree  that  the  husband  holds  the  title  in  trust  for  his  wife  and 
himself  as  an  estate  in  entirety. 

The  trial  court  erred,  therefore,  when  it  decided  that  one-half  the 
proceeds  of  the  Clinton  county  land,  $2,800  (which  is  the  amount 
the  court  found  was  the  proceeds  of  that  land),  belonged  to  the 
plaintiff  as  her  separate  property.  None  of  it  belonged  to  her  as 
her  separate  property,  and  none  of  it  belonged  to  her  husband  as 
his  exclusive  property,  the  whole  sum  belonged  to  them  both  as 
husband  and  wife  as  an  estate  in  entirety,  and,  being  so,  the  hus- 
band had  no  right  to  use  it  in  the  purchase  of  land  taking  the  title 
in  his  own  name,  he  should  have  taken  the  title,  to  the  extent  that 
that  money  purchased,  in  the  joint  names  of  himself  and  wife. 

The  evidence  shows  that  the  defendant  invested  the  proceeds 
of  the  Clinton  county  land,  $2,800,  together  with  $3,700  of  his  own 
money,  making  in  all  $6,500  in  the  Cass  county  land.  T^.tlie  ex^ 
tent  that  $2,800  represents  the  purchase  price  of  the  land,  the  dc: 
fendant  was  in  duty  bound  to  have  taken  the  title  in  the  name  of 
himself  and  wife  as  an  estate  in  entirety,  and  to  that  extent  he 
will  be  decreed  now  to  hold  the  title  in  trust.  The  judgment  is  re- 
versed, and  the  cause  remanded  to  the  circuit  court  of  Cass  county, 
with  directions  to  enter  a  judgment  in  plaintiff's  favor  decreeing 
that  the  title  to  an  undivided  ^V^""  oi  the  Cass  county  land  in 
question  is  vested  in  the  plaintiff  and  defendant  as  husband  and 
wife  as  an  estate  in  entirety,  and  the  title  to  the  remaining  undi- 
vided portion  of  the  land  is  vested  in  the  defendant,  and  that  the 
plaintiff'  recover  of  defendant  the  costs  in  the  circuit  court. 

The  judgment  so  entered  will  relate  back  to  the  date  of  the  filing 
of  this  suit  in  the  circuit  court,  and  will  be  an  adjudication  of  the 
rights  of  the  parties  at  that  date.  Whatever  may  have  occurred 
since  then  to  affect  the  rights  of  either  party  or  both  is  notj;es 
adjudicata  by  the  judgment  in  this  case.* 

8  See,  also,  Hardenbergh  v.  Hardenbergh,  10  N.  J.  Law,  42,  18  Am.  Dec 
371  (1828) ;  Baker  v.  Stewart,  40  Kau.  442,  19  Pac.  904,  2  L.  R.  A.  434,  10  Am. 
St.  Rep.  233  (1888) ;  Hiles  v.  Fisher,  144  N.  Y.  306,  39  N.  E.  337,  30  L.  R.  A. 
305,  43  Am.  St.  Rep.  762  (1895). 


CONTRACTS,  CONVEYANCES,  AND   QUASI   CONTRACT  79 


CONTRACTS,    CONVEYANCES,    ETC.,   AND   QUASI   CON- 
TRACTUAL OBLIGATIONS 

I.  Contracts  of  Wife  ^ 


FARRAR  V.  BESSEY. 
(Supreme  Court  of  Vermont,  1852.    24  Vt  89.) 

Book  account.  The  action  was  commenced  before  a  justice  of 
the  peace,  and  came  to  the  county  court  by  appeal.  Judgment  to 
account  was  rendered  in  the  county  court,  and  an  auditor  was 
appointed,  who  reported  the  facts  substantially  as  follows:  The 
plaintiff's  account  was  not  disputed,  but  the  defendants  relied  upon 
the  statute  of  limitations,  for  defense.  It  appeared  that  two  credits 
were  made  upon  the  plaintiff's  books  within  six  years,  for  services 
of  the  defendant's  wife,  and  that  the  plaintiff  and  defendants  agreed 
that  the  same  should  apply  on  the  account  against  the  wife  of  the 
defendant  Bessey,  contracted  before  her  intermarriage  with  the 
said  Bessey;  that  the  plaintiff  and  defendants,  before,  or  at  the 
time  the  services  were  rendered,  agreed  that  it  should  be  applied  in 
part  payment  of  the  account,  as  before  stated.  Upon  these  facts, 
the  county  court  rendered  judgment  for  the  defendants  upon  the 
report.     Exceptions  by  plaintiff. 

RoYCE,  C.  J.  This  was  an  action  of  book  account,  brought  to 
recover  a  balance  claimed  to  be  due  from  the  wife.  The  whole 
of  the  plaintiff's  account,  except  one  item  of  fifty  cents,  on  the  debit 
side,  and  two  items  of  credit,  amounting  to  two  dollars  and  fifty 
cents,  accrued  before  the  intermarriage  of  the  defendants.  They 
presented  no  account  before  the  auditor,  but  relied  on  the  statute 
of  limitations.  To  this  defense  two  answers  were  attempted  before 
the  auditor,  but  only  one  of  them  is  now  insisted  on.  This  is  based 
upon  the  fact,  that  the  three  items  referred  to  accrued  within  six 
years  before  the  commencement  of  the  action.  And  these  entries 
are  found  to  have  been  justified  by  real  transactions  between  the 
parties.  But  the  report  shows,  that  this  part  of  the  account  accrued 
after  the  defendants  had  intermarried.  When  it  accrued,  the  wife 
was  no  longer  capable  of  contracting  a  debt  against  herself,  nor  was 
she  entitled  to  claim  the  benefit  of  these  credits,  except  as  payments 
made  by  her  husband  upon  her  debt.  In  legal  effect,  this  part  of 
the  account  arose  between  the  plaintiff  and  the  husband  alone ;  so 
that  the  account  properly  existing  with  the  wife,  was  not  brought 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.   ^3  Efl.t  §  ni. 


80  CONTRACTS,  CONVEYANCES,  AND   QUASI   CONTRACT 

down  to  a  time  within  the  six  years.  Gay  et  ux.  v.  Estate  of  Rog- 
ers, 18  Vt.  342.  It  is  found  by  the  auditor,  however,  that  the  serv- 
ices of  the  wife,  which  constituted  these  two  items  of  credit,  were, 
by  the  express  consent  of  both  defendants,  received  to  be  applied 
in  part  payment  of  the  previous  account  against  the  wife.  They 
must  have  the  application  which  was  then  intended.  And  the  gen- 
eral rule  is,  that  the  admission  of  a  debt  by  part  payment,  is  suffi- 
cient to  warrant  the  implication  of  a  new  promise  to  pay  the  un- 
satisfied balance.  Strong  v.  McConnel,  5  Vt.  338.  Joslyn  v.  Smith, 
13  Vt.  353.  Munson  v.  Rice.  18  Vt.  53  and  Sanderson  v.  Milton 
Stage  Co.,   18  Vt.   107. 

But  to  authorize  the  implication  of  such  new  promise,  from  part 
payment,  or  other  acknowledgment  of  a  debt,  the  party  whose 
promise  is  to  be  implied,  must  be  legally  capable  of  making  a  valid 
and  binding  express  promise.  And  as  a  feme  covert  cannot  make 
such  a  promise  in  her  own  right,  especially  while  living  with  her 
husband,  it  follows  that  no  effectual  promise  of  the  wife  can  be 
implied  in  the  present  case,  from  the  fact  of  this  part  payment  of 
her  debt.  This  is  a  legitimate  and  obvious  conclusion,  from  the 
doctrine  held  in  Pittam  v.  Foster  et  al.,  8  C.  L.  R.  106.  And  we 
think  it  must  be  concluded,  from  the  decision  of  this  court  in  Pow- 
ers V.  Southgate  and  wife,  15  Vt.  471,  40  Am.  Dec.  691,  that  no 
promise  of  the  husband,  which  could  aflfect  the  rights  of  his  wife, 
under  the  statute  of  limitations,  was  to  be  implied  from  the  pay- 
ment made  by  him.  The  cause  of  action  against  the  wife  was  there- 
fore barred ;  and  the  present  suit,  founded  on  the  assumption  of  her 
continuing  liability,  could  not  be  sustained.  The  judgment  of  the 
county  court  is  accordingly  affirmed. 


II.  Conveyances,  Sales,  and  Gifts  by  Wife  * 


LANE  V.  SOULARD. 
(Supreme  Court  of  Illinois,  1853.     15  111.  123.) 

The  bill  alleges:  That  Soulard  conveyed  certain  property  in 
St.  Louis  to  trustees,  to  hold  in  trust  for  appellant,  a  married  wo- 
man, provided  she  shall  pay  out  of  her  separate  estate,  the  sum 
of  $9,000,  payable  in  four  installments;  that  said  Soulard  agreed 
to  complete  the  improvements  then  in  progress,  by  the  1st  Oc- 
tober, 1846;    that  to  secure  the  payment  of  the  first  installment 

2  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Eel.  (Sd  Ed.)  88 
64-67. 


CONVEYANCES,  SALES,  AND   GIFTS   BT   WIPE  81 

more  fully,  being  $2,000,  to  be  paid  1st  October,  1846,  the  appel- 
lant and  her  then  husband  executed  a  deed  of  trust  to  a  part  of 
the  defendants,  as  trustees  for  certain  lands  in  Illinois,  owned  in 
her  right,  which  authorized  the  sale  of  said  lands,  on  the  failure 
to  pay  said  first  installment,  and  out  of  the  proceeds  to  pay,  first, 
the  cost,  and  then  the  sum  of  $2,000;  that  upon  the  failure  to  pay 
any  or  all  of  the  installments,  or  the  interest,  out  of  the  separate 
estate  of  said  Margaret  B.  Lane,  the  property  in  St.  Louis  should 
be  sold  for  the  payment  thereof. 

That  said  Soulard  failed  to  complete  said  improvements  in  the 
time  and  according  to  his  contract,  and  that,  at  the  March  term 
of  the  St.  Louis  circuit  court  in  the  year  1851,  said  Soulard  ob- 
tained a  decree  for  the  sale  of  the  property  in  St.  Louis,  under 
which  decree  said  property  was  sold,  and  purchased  by  said  Soul- 
ard for  the  sum  of  $6,600;  that  said  first  installment  formed  a  part 
of  said  decree,  and  that  the  proceeds  of  said  sale  ought  to  be  ap- 
plied to  the  discharge  of  said  installment;  that  she  was  a  married 
woman  at  the  time  of  the  execution  of  the  deed  of  trust  for  lands 
in  Illinois;  that  the  consideration  of  the  deed  of  trust  had  failed, 
and  that  it  would  not  be  just  to  allow  Soulard  to  enforce  the  pay- 
ment and  still  hold  the  property  in  St.  Louis.  The  bill  further 
charges  that  her  land  has  been  sold  for  taxes,  and  calls  upon  the 
court  to  require  the  trustees  to  proceed  at  law  to  recover  said  prop- 
erty, and  to  enjoin  the  sale  until  the  title  is  settled.  The  answer 
admits  the  contract  as  set  out  by  appellant,  alleges  that  he  has 
completed  his  contract,  admits  the  proceedings  in  St.  Louis,  and 
sets  up  the  decree  in  St.  Louis  as  conclusive  as  to  the  amount  due 
— to  which  there  is  a  replication. 

This  cause  was  heard  before  Underwood,  Judge,  at  August  term, 
1853,  of  the  St.  Clair  Circuit  Court. 

Caton,  J.  Although  many  points  were  raised  and  ably  argued 
in  this  case,  we  shall  confine  ourselves  in  the  decision  to  one  sin- 
gle question,  which  is  unavoidably  decisive  of  the  whole  case.  The 
Revised  Statutes  repealed  all  the  former  laws  on  the  subject  of 
conveyances  of  real  estate,  and  authorized  married  women  within 
this  state  to  convey  their  land  by  joining  with  their  husbands  and 
acknowledging  the  deeds  in  a  specified  way;  but  no  authority  was 
given  for  married  women  residing  out  of  this  state  to  convey  their 
lands  lying  within  it.  The  law  thus  continued  till  the  act  of  the 
22d  of  February,  1857,  which  authorizes  married  women  without 
the  state  to  convey  their  lands  lying  within  this  state. 

In  April,  1846,  Mm.  Lane,  with  her  husband,  executed  this  deed 
of  trust,  in  the  city  pf  St.  Louis,  where  she  then  resided.  The  deed 
of  trust  conveys  the  premises  in  question  to  certain  trustees,  to  se- 
cure the  payment  of  certain  moneys  to  Soulard.  The  question  is, 
whether  this  was  a  valid  conveyance  of  the  premises.     We  shall 

COOLET  P.&  D.REL,— 6 


I 


82        CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACT 

not  stop  to  adduce  authorities  to  show,  that  a  feme  covert  can- 
not, except  she  be  authorized  by  an  express  statute,  convey  her  fee- 
simple  title  to  real  estate  by  deed.  She  is  incapable  of  doing  so 
at  the  common  law,  and  hence  there  can  be  no  law  for  it,  unless 
it  be  by  statute.  Without  a  statute,  she  is  incapable  of  conveying 
by  deed  as  she  is  by  word  of  mouth.  From  1845  to  1847,  there  was 
no  statute  enabling  married  women  without  the  state  to  convey 
their  lands  within  it.     This  deed  having  been  made  without  the 

^authority  of  law,  and  against  law,  was  simply  void;  as  void  as  if 
it  had  been  expressly  prohibited  by  a  positive  statute.  The  second 
section  of  the  law  of  1847,  provides  that  a  feme  covert  not  residing 
in  this  state,  being  above  the  age  of  eighteen  years,  may  join  her 
husband  in  the  execution  of  deeds,  etc.,  of  lands  lying  within  this 
state,  and  that  she  shall  thereby  be  barred  of  her  right  in  like  man- 
ner as  if  she  was  sole,  and  the  acknowledgment  of  such  deed  may 
be  made  in  the  same  manner  as  if  she  was  sole,  and  the  section 
concludes:  "And  the  provisions  of  this  section  shall  apply  to  deeds, 
mortgages,  conveyances,  powers  of  attorney,  and  other  writings, 
heretofore,  as  well  as  those  which  may  hereafter  be  executed."  The 
third  section  provides  that  such  deeds,  etc.,  which  had  been  or 
might  thereafter  be  executed  without  the  state  and  within  the 
United  States,  and  acknowledged  or  proved  in  conformity  to  that 
statute,  should  be  admitted  to  record,  and  read  in  evidence  with- 
out  further  proof. 

Admitting  that  here  was  the  deliberate  purpose  on  the  part  of 
the  legislature,  to  give  effect  to  conveyances  made  by  married 
women  out  of  the  state,  during  the  two  years  when  they  were  not 
authorized  to  make  such  conveyances,  and  the  question  arises.  Had 
they  authority  to  make  such  deeds  operative?  We  cannot  bring 
our  minds  to  entertain  a  doubt  that  the  legislature  had  no  such 
authority.  Notwithstanding  this  deed  of  trust,  Mrs.  Lane  was,  on 
the  21st  of  February,  1847  as  much  the  absolute  owner  of  this  land 
as  if  she  had  never  made  such  a  deed.  That  deed  affected  her 
right  to  it  in  no  way  whatever,  any  more  than  if  it  had  continued 
a  blank  piece  of  paper,  or  her  name  had  been  forged  to  it  by  an- 
other, instead  of  being  written  by  herself.  She  was  no  more  au- 
thorized by  law  to  put  her  name  to  that  deed,  so  far  as  giving 
it  effect  was  concerned,  than  a  stranger  had  to  write  it  for  her.    IL 

;:ihe  legislature  could  give  effect  to  a  deed  thus  executed  against 
the  provisions  of  the  law,  then  they  could  make  a  deed  at  once, 
which  would  convey  the  title.  If  they  could  by  force  of  law  make 
her  title  pass  where  none  had  passed  before,  then  it  is  the  law 
which  passes  the  title  and  not  the  deed.  It  is  the  act  of  the  leg- 
islature and  not  her  own  act,  which  deprives  her  of  her  land.  If, 
on  the  21st  of  February,  she  was  the  absolute  owner  of  this  land, 
unaffected,  uninfluenced,  unprejudiced  by  any  thing  which  she  had 
previously  done  or  suffered,  and  on  the  23d  of  February,  she  had 


CONVEYANCES,  SALES,  AND   GIFTS    BY    WIFE  83 

ceased  to  own  it,  by  whose  act  had  the  title  passed?  Not  by  her 
own  act,  certainly,  for  she  had  done  nothing  in  the  mean  time  or 
previously,  which  could  transfer  the  title.  How  then  had  it  passed? 
By  the  act  of  the  legislature  alone.  She  had  not  done  it,  for  she 
could  not  in  any  way,  shape,  or  form,  pass  the  title;  but  the  legis- 
lature had  taken  her  land  from  her  and  given  it  to  others.  This 
they  are  expressly  prohibited  from  doing,  by  the  constitution. 

In  support  of  the  constitutionality  of  this  law,  we  have  been 
referred  to  several  decisions  in  Pennsylvania,  and  in  some  other 
states,  and  in  the  Supreme  Court  of  the  United  States.  Nor  is  this 
the  first  time  that  our  attention  has  been  called  to  these  cases. 
Without,  at  the  present  time,  expressing  any  opinion  upon  the  pro- 
priety of  those  decisions,  it  is  sufficient  to  say,  that  they  are  upon 
cases  not  like  this;  but  to  sustain  this  law  we  should  have  to  go 
further  than  any  of  these  courts  have  gone,  in  sustaining  legisla- 
tive control  over  titles  to  real  estate.  Indeed,  the  protection  in- 
tended to  be  secured  by  the  constitution  would  be  quite  thrown 
down,  and  they  would  be  left  to  dispose  of  the  titles  of  individ- 
uals as  they  please.  In  those  cases  the  law  had  authorized  the 
parties  to  convey,  but  the  conveyances  had  been  imperfectly  ex- 
ecuted or  acknowledged,  and  the  curative  laws  had  been  passed 
to  remedy  such  defects,  and  to  confirm  contracts  which  had  been 
authorized  by  law  to  be  made.  Upon  this  ground  all  those  deci- 
sions were  made.  But  the  case  before  us  is  quite  different.  Here, 
the  law  authorized  no  such  contract  whatever.  In  each  of  those 
cases  there  was  an  imperfect  or  defective  execution  of  a  power. 
Here  is  a  total  want  of  power.  There,  there  was  a  capacity  to  act 
and  an  attempt  made  to  exercise  that  capacity.  Here  was  a  total 
incapacity  to  act,  and  whatever  was  attempted  to  be  done,  was 
in  direct  violation  of  the  law.  Here,  the  party  had  attempted  to 
do  nothing  which  the  law  had  authorized  her  to  do.  Here,  there 
was  no  defect  to  remedy,  but  the  entire  act  was  void,  not  for  the 
want  of  form,  but  for  the  want  of  power;  and  we  are  very  clearly 
of  opinion  that  the  legislature  could  not  give  effect  to  a  convey- 
ance, which  the  law  prohibited  her  from  making,  and  thus  trans- 
fer a  title  by  the  mere  farce  of  a  legislative  act. 

The  decree  of  the  circuit  court  must  be  reversed,  and  a  decree 
entered  in  this  court,  enjoining  the  trustees  named  in  the  deed  of 
trust  from  proceeding  to  sell  under  that  deed.     Decree  reversed.' 

s  Accord:  Hlggins  v.  Crosby,  40  111.  260  (1SG6) ;  Rogers  v.  Higgins,  48  111. 
211  (1868).  Compare  Hoyt  v.  Swar,  53  111.  134  (1870),  and  Harrer  v.  Wallner, 
80  111.  197  (1875). 


84  CONTRACTS,  CONVEYANCES,  AND   QUASI   CONTRACT 


III.  Contracts  by  Wife  as  Husband's  Agent  * 


FEINER  V.  BOYNTON. 
(Supreme  Court  of  New  Jersey,  1905.     73  N.  J.  Law,  136,  62  Atl.  420.) 

Action  by  Elizabeth  Feiner  and  others  against  Harriet  G.  Boyn- 
ton.     There  was  joidgment  for  plaintiffs,  and  defendant  appeals. 

Garretson,  J.  The  plaintiffs  recovered  a  judgment  against  the 
defendant  in  a  district  court  for  the  value  of  goods  furnished.  The 
defendant  is,  and  at  the  time  the  goods  were  furnished  was,  a 
married  woman  living  with  her  husband.  The  goods  furnished 
were  for  the  personal  use  of  the  defendant.  It  appears  from  the 
state  of  the  case  that  the  husband  provided  the  defendant  with 
money  from  time  to  time  for  her  household  and  personal  expenses ; 
that  the  account  with  the  plaintiffs  had  always  been  in  the  de- 
fendant's name;  that  the  defendant  paid  the  bills,  of  which  there 
were  a  large  number,  during  the  11  years  through  which  the  ac- 
count had  been  running,  with  her  own  checks,  drawn  upon  a  bank 
where  her  husband  had  deposited  money  for  her,  of  which  de- 
posit the  plaintiffs  had  no  knowledge  at  all ;  that  the  plaintiffs 
had  never  had  any  dealings  with  her  husband;  that  the  husband 
deposited  various  sums  of  money,  ranging  from  $300  to  $700,  in 
the  People's  Bank  of  East  Orange,  and  that  the  defendant  drew 
her  own  checks  against  said  accounts  to  pay  for  the  various  house- 
hold expenses,  as  well  as  for  her  clothing;  that  she  had  a  sep- 
arate estate. 

There  is  no  evidence  to  show  that  the  defendant  ever  made  any 
express  contract  with  the  plaintiffs  which  would  bind  her  separate 
estate,  and  the  only  evidence  from  which  a  contract  could  be  in- 
ferred was  that  the  goods  were  charged  to  the  defendant  on  the 
plaintiffs'  books,  and  that  the  defendant  paid  the  bills  with  her  own 
checks ;  but  there  is  nothing  to  show  that  the  defendant  knew  that 
the  goods  were  being  charged  to  her  by  the  plaintiffs,  and  the 
checks  she  gave  in  payment  were  of  her  husband's  moneys,  which 
had  been  deposited  by  her  husband  to  pay  for  household  expenses 
and  her  clothing.  A  debt  incurred  for  the  necessary  clothing  of 
a  married  woman  is  presumably  the  debt  of  the  husband,  and,  if 
incurred  by  the  wife,  it  is  presumed  she  is  acting  as  the  agent  of 
her  husband,  unless  there  is  affirmative  evidence  to  show  that  she 
intended  to  charge  her  separate  estate.  In  Wilson  v.  Herbert,  41 
N.  J.  Law,  461,  32  Am.  Rep.  243,  it  is  held :  "When  husband  and 
wife  are  living  together,  and  the  wife  purchases  articles  for  do- 

4  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §S 
69,  70. 


CONTRACTS  BY   WIFE   AS  HDSBAND's  AGENT  85 

mestic  use,  the  law  imputes  to  her  the  character  of  an  agent  of 
her  husband,  and  regards  him  as  the  principal  debtor.  She  may 
contract  for  such  articles  as  principal,  and  assume  the  responsi- 
bility of  a  principal  debtor.  But,  to  fix  upon  her  a  liability,  it  must 
affirmatively  appear  that  she  made  the  purchase  on  her  individual 
credit.  There  must  be  either  an  express  contract  on  her  part  to 
pay  out  of  her  separate  estate,  or  the  circumstances  must  be  such 
as  to  show  clearly  that  she  assumed  individual  responsibility  for 
payment,  exclusive  of  the  liability  of  her  husband." 
The  jjidgmfint  of  the  district  court  is  reversed. 


BALL  v.  LOVETT. 

(Supreme  Court  of  New  York,  Appellate  Term,  1906.     98  N.  Y.  Supp.  815.) 

Action  by  Thomas  R.  Ball  and  others  against  George  E.  Lovett. 
From  a  judgment  for  plaintiffs,  defendant  appeals. 

BiscHOFF,  J.  The  goods  in  question  were,  in  their  character, 
such  as  would  properly  be  described  as  necessaries  for  the  defend- 
ant's children,  and  the  testimony  generally  supported  the  infer- 
ence that  the  station  in  life  of  the  parties  justified  the  purchase 
by  the  defendant's  wife.  While  it  appears  that  the  defendant  had 
left  his  home  shortly  before  the  period  of  these  purchases,  there 
was  no  overt  separation,  and  the  wife  continued  to  reside  in  the 
home  provided  for  her.  Her  agency  to  purchase  the  goods  was. 
supported  by  a  course  of  dealing,  apart  from  the  strict  relation  of 
husband  and  wife,  since  the  defendant  had  continuously  paid  bills 
rendered  by  the  plaintiffs  in  the  wife's  name  fqrsimilar  purchases, 
'and  there  was  nothing  to  apprise^the  plaintiffs  of  any  claim  that 
the  agency,  apparently  continuing,  had  been  terminated.  Again, 
since  there  was  no  open  separation  of  the  parties,  the  presumption 
of  the  wife's  agency  to  pledge  her  husband's  credit  for  necessaries 
still  existed,  and  the  defendant's  evidence  did  not  require  the  court 
to  find  that  he  had  made  sufficient  provision  for  these  particular 
needs,  as  against  the  inferences  to  be  drawn  from  the  other  evi- 
dence in  the  case. 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 


BERGH  V.  WARNER. 

(Supreme  Court  of  Minnesota,  1891.    47  Minn.  250,  50  N.  W.  77,  28  Am.  St. 

Rep,  'M2.) 

Action  by  Christian  C.  Bergh  against  Lucien  Warner  for  debts 
contracted  by  defendant's  wife.    Plaintiff  appeals. 

Mitchell,  J."*    It  is  sought  in  this  action  to  hold  the  defendant 

liable  for  debts  contracted  by  his  wife  during  coverture  and  cohab- 

« 

6  Part  of  the  opinion  is  omitted. 


86  CONTRACTS,  CONVEYANCES,  AND   QUASI   CONTRACT 

itation.  The  first  cause  of  action  is  for  the  price  of  a  pair  of  dia- 
mond ear-rings,  purchased  by  the  wife  for  her  own  use ;  the  sec- 
ond is  for  a  small  sum  for  repairing  certain  articles  of  her  jew- 
elry. The  wife  has,  by  virtue  of  the  marriage  relation  alone,  no 
authority  to  bind  her  husband  by  contracts  of  a  general  nature. 
She  may,  however,  be  his  agent,  and,  as  such,  bind  him.  This 
agency  is  frequently  spoken  of  as  being  of  two  kinds — First,  that 
which  the  law  creates  as  the  result  of  the  marriage  relation,  by 
virtue  of  which  the  wife  is  authorized  to  pledge  the  husband's 
credit  for  the  purpose  of  obtaining  those  necessaries  which  the 
husband  himself  has  neglected  or  refused  to  furnish ;  second,  that 
which  arises  from  the  authority  of  the  husband,  expressly  or  im- 
pliedly conferred,  as  in  other  cases.  The  first  of  these,  sometimes 
called  an  "agency  in  law,"  or  an  "agency  of  necessity,"  is  not,  ac- 
curately speaking,  referable  to  the  law  of  agency ;  for  the  liability 
of  the  husband  in  such  cases  is  not  at  all  dependent  upon  any 
authority  conferred  by  him.  He  would,  under  such  circumstances, 
be  liable  although  the  necessaries  were  furnished  to  the  wife  against 
his  express  orders. 

The  real  foundation  of  the  husband's  liability  in  such  cases  is 
the  clear  legal  duty  of  every  husband  to  support  his  wife,  and  sup- 
ply her  with  necessaries  suitable  to  her  situation  and  his  own  cir- 
cumstances and  condition  in  life.  But  the  wife's  authority  on  this 
ground  to  contract  debts  on  the  credit  of  her  husband  is  limited 
in  its  extent  and  nature  to  the  legal  requirements  fixed  for  its  cre- 
ation, of  the  existence  of  which  those  persons  who  assume  to  deal 
with  the  wife  must  take  notice  at  their  peril.  If  they  attempt  to 
hold  the  husband  liable  on  this  ground,  the  burden  of  proof  is 
upon  them  to  show— First,  that  the  husba'nd  refused  or  neglected 
to  provide  a  suitable  support  for  his  wife;  and,  second,  that  the 
articles  furnished  were  necessaries.  The  term  "necessaries,"  in 
its  legal  sense,  as  applied  to  a  wife,  is  not  confined  to  articles  of 
food  and  clothing  required  to  sustain  life  or  preserve  decency,  but 
includes  such  articles  of  utility,  or  even  ornament,  as  are  suitable 
to  maintain  the  wife  according  to  the  estate  and  rank  of  her  hus- 
band. 

In  regard  to  the  much  vexed  question  as  to  how  it  is  to  be  de- 
termined, in  a  given  case,  whether  the  articles  furnished  were  nec- 
essaries, the  general  rule  adopted  is  that  laid  down  by  Chief  Jus- 
tice Shaw  in  Davis  v.  Caldwell,  12  Cush.  (Mass.)  512,  viz.,  that 
it  is  a  question  of  fact  for  the  jury,  unless  in  a  very  clear  case, 
where  the  court  would  be  justified  in  directing  authoritatively  that 
the  articles  cannot  be  necessaries.  In  this  case  the  plaintifif  ut- 
terly failed  to  establish  a  right  to  recover  for  the  articles  sued  for 
in  the  first  cause  of  action  as  "necessaries."  Conceding,  for  the 
sake  of  argument,  that,  in  view  of  the  estate  and  rank  of  the  de- 
fendant, the  trial  judge  would  have  been  justified  in  finding  as  a 


CONTRACTS   BY  WIFE   AS  HUSBAND's  AGENT  87 

fact  that  diamond  ear-rings  were  necessaries;  yet,  so  far  from  there 
being  any  evidence  that  the  defendant  neglected  or  refused  to  pro- 
vide his  wife  a  suitable  support,  it  affirmatively  appeared  that  he 
provided  for  her  amply,  and  even  liberally. 

The  only  other  ground  upon  which  the  defendant  could  be  held 
liable  was  by  proof  that  he  expressly  or  impliedly  authorized  his 
wife  to  purchase  the  articles  on  his  credit.  This  is  purely  and 
simply  _a^estion  of  agency,  which  rests  upon  the  same  considera- 
tions which  control  the  creation  and  existence  of  the  relation  of 
principal  and  agent  between  other  persons.  The  ordinary  rules  as 
to  actual  and  ostensible  agency  must  be  applied.  The  agency  of 
the  wife,  if  it  exists,  must  be  by  virtue  of  the  authorization  of  the 
husband,  and  this  may,  as  in  other  cases,  be  express  or  implied. 
Her  authority,  however,  when  implied,  is  to  beTmplied  from  acts 
and  conduct,  and  not  from  her  position  as  wife  alone.  Of  course, 
the  hu!>band,  as  well  as  every  principal,  is  concluded  from  deny- 
ing that  the  agent  had  such  authority  as  he  was  held  out  by  his 
principal  to  have,  in  such  a  manner  as  to  raise  a  belief  in  such 
authority,  acted  on  in  making  the  contract  sought  to  be  enforced. 
Such  liability  is  not  founded  on  any  rights  peculiar  to  the  conjugal 
relation,  but  on  other  grounds  of  universal  application.  By  hav- 
ing, without  objection,  permitted  his  wife  to  contract  other  bills 
of  a  similar  nature  on  his  credit,  or  by  payment  of  such  bills  pre- 
viously incurred,  and  thus  impliedly  recognizing  her  authority  to 
contract  them,  a  husband  may  have  clothed  his  wife  wfth  an  os- 
tensible agency  and  apparent  authority  to  contract  the  bill  sued 
on,  so  as  to  render  him  liable,  although  she  had  no  actual  au- 
thority,  just  as  any  principal  would  be  liable  under  like  circum- 
stances. It  is  also  true  that  where  the  wife  is  living  with  her  hus- 
band, she,  as  the  head  and  manager  of  his  household,  is  presumed 
to  have  authority  from  him  to  order  on  his  credit  such  goods  or 
services  as,  in  the  ordinary  arrangement  of  her  husband's  house- 
hold, are  required  for  family  use.  Flynn  v.  Messenger,  28  Minn. 
208,  9  N.  W.  759,  41  Am.  Rep.  279 ;  Wagner  v.  Nagel,  33  Minn. 
348,  23  N.  W.  308.  This  presumption  is  founded  upon  the  well- 
known  fact  that,  in  modern  society,  almost  universally,  the  wife, 
as  the  manager  of  the  household,  is  clothed  with  authority  thus 
to  pledge  her  husband's  credit  for  articles  of  ordinary  household 
use. 

But  the  articles  sued  for  here  are  not  of  that  character,  and 
no  such  presumption  would  arise  from  the  mere  fact  that  the  par- 
ties were  living  together  as  husband  and  wife.  To  hold  the  hus- 
band liable  there  must  have  been  some  affirmative  proof  of  au- 
thority from  him,  either  express,  or  implied  from  his  acts  and  con- 
duct. In  this  case  there  is  an  entire  absence  of  any  evidence  of 
express  authority.  Indeed,  the  evidence  tends  quite  strongly  to 
show  that  it  was  his  expressed  wish  that  his  wife  would  incur  no 


88  CONTRACTS,  CONVEYANCES,  AND   QUASI   CONTRACT 

bills,  and  that  his  monthly  allowance  to  her  of  "pin-money"  was 
intended  to  avoid  any  occasion  for  her  doing  so.  The  evidence  of 
acts  and  conduct  on  part  of  defendant  tending  to  show  that  he  had 
clothed  his  wife  with  apparent  or  ostensible  authority  to  buy  any 
such  articles  on  his  credit  was  exceedingly  slight.  The  mere  fact 
that  he  furnished  his  wife  with  expensive  wearing  apparel  had  lit- 
tle, if  any,  tendency  to  prove  any  such  fact.  The  same  may  be 
said  of  the  evidence  that  on  one  occasion  he  paid  a  dress-maker's 
bill  of  $136,  contracted  by  his  wife,  especially  as  there  is  no  evi- 
dence that  plaintiff  had  any  knowledge  of  that  fact.  As  to  previ- 
ous dealings  between  the  parties,  the  only  evidence  is  that  on 
various  occasions  plaintiff  had  sold  the  wife  articles  of  jewelry  for 
cash,  but  on  one  occasion,  nearly  three  years  before,  he  had  sold 
her  on  credit  a  bill  of  jewelry  amounting  to  some  $19,  the  prin- 
cipal item  of  which  was  a  pair  of  opera-glasses  of  the  value  of  $12, 
and  that  this  bill  was  charged  on  plaintiff's  books  to  the  wife,  but 
that  the  husband,  about  a  year  afterwards,  paid  it.  We  do  not  think 
that  the  evidence  was  such  as  to  require  a  finding  that  the  wife 
had  authority  to  purchase  the  articles  on  the  credit  of  the  defend- 
ant.    *     *     * 

Upon  the  trial  the  defendant's  counsel  stated  in  open  court  that 
"defendant  admits  the  items  in  the  bill  for  repairs  [the  second 
cause  of  action],  but  disclaims  any  liability  for  the  diamond  ear- 
rings." This  must  be  construed  as  an  admission  of  the  second 
cause  of  action.  The  trial  court  found  against  plaintiff  on  both 
causes  of  action.  This  was,  of  course,  error.  *  *  *  The  order 
appealed  from  is  affirmed  as  to  the  first  cause  of  action,  and  re- 
versed as  to  the  second,  but  without  costs  to  either  party. 


CLOTHIER  V.  SIGLE. 

(Supreme  Court  of  New  Jersey,  1906.    73  N.  J.  Law,  419,  63  Atl.  865.) 

Action  by  Clarkson  Clothier  and  others  against  Calvin  R.  Sigle. 
Judgment  for  plaintiffs.    Defendant  appeals. 

Fort,  J.  The  plaintiffs  sue  the  defendant  for  necessaries  fur- 
nished to  his  wife.  That  articles  of  wearing  apparel  and  the  like 
were  furnished  to  her  by  the  plaintiffs  on  her  order  and  that  they 
were  such  as  were  suitable  for  one  in  her  station  in  life,  was  proven. 
The  defense  was  that  the  defendant  was  not  living  with  his  wife 
at  the  time  the  articles  were  purchased,  but  that  they  were  living 
in  a  state  of  separation,  without  his  fault,  and  that  the  plaintiffs 
knew  of  that  fact. 

Where  a  wife  is  living  separate  and  apart  from  her  husband, 
as  a  result  of  his  wrongful  desertion,  and  he  refuses  to  furnish 
her  adequate  means  for  her  support,  the  law  implies  an  agency  in 


CONTRACTS  BY  WIFE   AS  HUSBAND's  AGENT  89 

her  to  purchase  necessaries  on  the  credit  of  the  husband.  But  the 
proof  of  the  fact  that  he  is  the  deserter  rests  upon  the  plaintiff. 
Vusler  V.  Cox,  53  N.  J.  Law,  516,  519,  22  Atl.  347;  Hall  v.  Weir, 
1  Allen  (Mass.)  261 ;  Dedenham  v.  Mellow,  6  App.  Cas.  24,  31 ; 
Snover  v.  Blair,  25  N.  J.  Law,  94;  Lockwood  v.  Thomas,  12  Johns. 
(N.  Y.)  248;   Mayhew  v.  Thayer,  8  Gray  (Mass.)  172-175. 

The  district  court  judge,  before  whom  the  case  was  tried  with- 
out jury,  found  that  the  defendant  had  wrongfully  deserted  his 
wife  and  had  refused,  when  requested  by  her,  to  supply  her  with 
money  to  furnish  the  necessaries  of  life.  There  was  evidence  from 
which  he  could  so  find.  This  court  will  not  review  the  district 
court  on  questions  of  fact.  If  there  be  evidence  to  justify  the  find- 
ing of  that  court,  its  judgment  will  be  sustained.  Cosgrove  v.  Met- 
ropolitan Construction  Co.,  71  N.  J.  Law,  106,  58  Atl.  82;  Mc- 
Laughlin V.  Beck,  71  N.  J.  Law,  380,  58  Atl.  1081. 

It  is  contended  by  the  defendant  that  the  proof  showed  that 
the  defendant  had  provided  a  home  for  his  wife,  in  which  he  re- 
sided, and  that  she  was  bound  to  come  to  him  there  and  be  sup- 
ported in  it  and  that  as  she  had  failed  to  do  so,  this  action  would 
not  lie.  The  proof  seems  to  be  clear  that  the  defendant  did  OAvn 
a  dwelling  house  property,  and  he  testified  he  was  living  in  it,  but 
there  was  not  the  slightest  evidence,  except  his  own  statement, 
that  he  had  ever  requested  his  wife  to  come  to  it  and  live  with  him, 
or  had  ever  offered  to  support  her  in  the  house.  He  left  his  wife 
over  two  years  prior  to  the  suit  and  had  never  visited  her  in  the 
house  from  which  he  had  deserted  her,  nor  had  he  sought  her  to 
return  to  him,  or  advised  her  that  he  had  a  home  to  which  she 
might  come. 

The  judgment  of  the  district  court  is  affirmed. 


STEINFIELD  v.  GIRRARD. 

(Supreme  Judicial  Court  of  Maine,  1907.    103  Me.  151,  68  Atl.  630.) 

Assumpsit  by  H.  L.  Steinfield  against  Henry  Girrard  to  re- 
cover the  price  of  certain  merchandise,  "in  the  nature  of  necessa- 
ries," furnished  by  plaintiff  to  the  wife  of  the  defendant.  The  wife 
had  not  been  living  with  her  husband  for  some  months  prior  to  the 
purchase,  and  the  plaintiff  did  not  know  at  the  time  he  furnished 
the  merchandise  to  the  wife  that  she  and  her  husband  had  sepa- 
rated. Verdict  for  plaintiff  for  $18.08.  During  the  trial  the  de- 
fendant excepted  to  certain  rulings  made  by  the  presiding  justice. 

King,  J.  ®  Action  of  assumpsit  to  recover  the  price  of  certain 
merchandise  furnished  to  the  wife  of  defendant. 

«  The  statement  of  facts  is  rewritten. 


90        CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACT 

Verdict  for  plaintiff.  The  case  is  before  the  law  court  on  defend- 
ant's exceptions  to  the  exclusion  of  testimony  and  certain  instruc- 
tions of  the  presiding  justice. 

•  It  appeared  in  evidence  that  the  wife  had  never  before  bought 
any  goods  of  plaintiff  on  defendant's  credit,  that  she  had  not  been 
living  with  her  husband  for  some  few  months  prior  to  the  purchase, 
but  that  the  plaintiff  was  ignorant  of  the  separation. 

The  defendant  offered  his  own  testimony  to  the  effect  that  he  was 
always  willing  and  prepared  to  provide  a  home,  and  all  neces- 
saries for  his  wife,  and  that  she  was  living  apart  from  him  on  the 
date  of  the  purchase  of  the  goods  sued  for,  without  fault  on  his 
part.  This  testimony  was  excluded  for  the  reason,  as  stated  by  the 
presiding  justice,  that,  unless  the  plaintiff  knew  of  the  separa- 
tion, the  testimony  offered  would  be  immaterial.  To  that  ruling 
the  defendant  excepted.  We  think  that  the  exception  must  be 
sustained. 

It  was  incumbent  upon  the  plaintiff  to  establish  the  authority 
of  the  wife  to  bind  the  husband  by  the  purchase  of  the  goods.  The 
only  evidence  relied  upon  for  this  purpose  was  the  fact  of  mar- 
riage. It  may  be  doubtful,  if  there  is  any  presumption  of  agency 
on  the  part  of  the  wife  to  pledge  her  husband's  credit  for  neces- 
saries arising  from  the  marriage  contract  alone,  independent  of  the 
conjugal  relation  and  cohabitation;  but,  if  there  is  any  such  pre- 
sumption, it  is  rebuttable,  and  may  be  disproved  by  the  husband. 
Baker  v.  Carter,  83  Me.  132,  21  Atl.  834,  23  Am.  St.  Rep.  764. 

The  authority  of  a  wife  to  pledge  her  husband's  credit  for  neces- 
saries arising  from  the  marital  relation  alone  is  only  coexistent, 
and  coextensive  with  her  necessity  occasioned  by  his  failure  to  ful- 
fill his  duty  in  this  respect.  If  his  duty  has  been  performed,  or  no 
longer  continues,  then  no  necessity  can  legally  arise  which  would 
entitle  the  wife  to  such  authority. 

When  a  wife  deserts  her  husband,  without  his  fault,  she  forfeits 
all  right  to  support  and  maintenance  from  him,  and,  a  fortiori,  in 
such  case,  she  carries  with  her  no  authority  to  use  his  credit,  even 
for  necessaries.    Peaks  v.  Mayhew,  94  Me.  571,  48  Atl.  172. 

The  testimony  offered  in  the  case  at  bar  was  to  the  effect  that 
the  wife  had  in  fact  forfeited  her  right  to  support  from  the  de- 
fendant by  a  willful  violation  of  marital  duty,  a  separation  from 
him  without  his  fault,  and  that  he  was  willing  and  prepared  to 
provide  a  home  and  all  necessaries  for  her.  If  true  it  would  have 
established  affirmatively  a  complete  defense  to  the  action.  The 
defendant  had  a  right  to  make  this  defense  irrespective  of  the 
plaintiff's  lack  of  knowledge  of  the  separation. 

The  testimony  offered  should  have  been  admitted.  Its  exclusion 
was  prejudicial  to  the  defendant,  depriving  him  of  the  right  to 
present  facts  which  would  disprove  any  liability  on  his  part  under 


CONTRACTS   BY   WIFE    AS   HUSBAND'S   AGENT  91 

the  action.  For  that  reason  this  exception  must  be  sustained,  and 
a  new  trial  granted. 

The  conclusion  which  we  have  reached  that  a  new  trial  must  be 
granted  on  account  of  the  exclusion  of  the  testimony  offered  by 
the  defendant  renders  unnecessary  a  consideration  of  the  other  ex- 
ceptions. 

Exceptions  sustained. 


92  wife's  equitable  and  statutory  separate  estate 


WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE 

ESTATE 

I.  Power  to  Dispose  of  Equitable  Separate  Estate ' 


TURNER  V.  SHAW. 
(Supreme  Court  of  Missouri,  18S8.    96  Mo.  22,  S  S.  W.  897.  9  Am.  St.  Rep.  319.) 

Ejectment  by  Stephen  J.  Turner  against  Mary  J.  Shaw.  The 
case  was  tried  witliout  a  jury,  and  j^udgment  was  rendered  for 
plaintiff,  from  which  defendant  appeals. 

Sherwood,  J.  ^     Ejectment  for  an  undivided  one-sixth  part  of 
lots  519  and  520,  in  block  65,  in  the  city  of  Louisiana,  Pike  county, 
Mo.     The  plaintiff  and  defendant  are  brother  and  sister,  children 
and  heirs  at  law  of  their  father  and  mother,  John  F.  and  Sarah 
Ann  Turner.    The  answer  was  a  general  denial,  with  a  statement 
of  special  matters  of  defense  set  out  at  length,  alleging  that  John 
F.  Turner,  deceased,  the  common  source  of  title,  being  a  Southern 
sympathizer,  and  alarmed  at  the  condition  of  the  country,  in  June, 
1861,  executed  a  deed  of  conveyance  of  the  property  in  question  to 
his  wife,  Sarah  Ann  Turner,     This  deed  was  recorded  in   1865. 
John  F.  Turner,  with  his  family,  consisting  of  his  said  wife  and 
two  daughters,  Mary  J.  Shaw  and  Sallie  Turner,  continued  in  the 
uninterrupted  possession  of  the  property  up  to  the   date  of  his 
death,  in  1880.     The  wife  died  in  1882.     The  defendant,  Mary  J. 
Shaw,  widowed  sister  of  the  plaintiff,  was  the  housekeeper  and 
general  manager  of  the  household  from  the  time  of  the  acquisition 
of  the  property,  in  1852,  until  the  death  of  her  mother,  Mrs.  Sarah 
Ann  Turner,  in  1882.    That  on  account  of  his  fears  for  the  safety 
of  himself  and  property,  and  for  the  purpose  of  placing  all  his 
property  in  such  a  condition  that  his  family  might  have  full  ben- 
efit of  it  in  case  of  his  death,  or  its  confiscation,  on  June  5,  1861, 
in  consideration  of  "love  and  respect"  for  his  said  wife,  he  conveyed 
to  her  all  of  his  property,  consisting  of  several  tracts  of  land,  to- 
gether with  the  lots  in  question,  which  were  occupied  as  his  home- 
stead.    In  September,  1874,  the  wife,_Sarah  Ann  Turner,  in  con- 
sideration of  the  sum  of  five  dollars,  etc.,  reconveyed  the  same  prop- 
erty to  her  husband.     In  August,    1878,  being  advised  that  the 
last-named   conveyance  was  ineffectual  to  reinvest  him   with   the 
legal  title  to  the  property  so  as  to  enable  him  to  make  a  proper  dis- 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.(3d  Ed.)  §  74. 

2  Part  of  the  opinion  is  omitted.    • 


POWER   TO    DISPOSE    OF    EQUITABLE    SEPARATE    ESTATE  93 

position  of  his  entire  estate  among  his  children,  and  especially 
to  secure  to  his  two  daughters,  aforesaid,  the  property  in  dispute, 
for  a  permanent  home  for  them,  he  and  his  said  wife  executed  a 
deed  to  the  said  Mary  J.  Shaw,  by  which  they  intended  to  con- 
vey all  of  his  property,  including  these  two  lots.  That,  on  the 
same  day,  Alary  J.  Shaw  executed  her  deed  to  her  father  for  the 
same  property,  following  the  description  of  the  last-mentioned 
deed.  In  both  of  these  conveyances,  lots  519  and  520,  in  block  65, 
were  omitted  by  the  mistake  of  the  scrivener.  October  25,  1878, 
John  F.  Turner  made  his  last  will,  devising  these  two  lots  to  his 
said  daughters,  subject  to  the  life-estate  of  his  wife,  Sarah  Ann 
Turner.  Sallie  Turner  afterwards  conveyed  her  interest  to  her 
sister,  Mary  J.  Shaw.     *     *     * 

This  case  was  heard  and  determined  solely  upon  the  theory  of 
the  special  defense  set  forth  in  the  answer,  that  defendant  was  en- 
titled to  have  the  deeds  of  1878  so  reformed  as  to  have  included 
therein  the  lots  in  controversy.  After  an  examination  of  the  evi- 
dence, I  am  satisfied  that  it  is  not  sufficient  to  warrant  a  decree 
tor  the  reformation  of  those  deeds.     *     *     * 

~"But  there  is  another  aspect  in  which  this  case  is  to  be  regarded — 
one  which  appears  to  have  escaped  the  attention  of  both  court 
and  counsel.  It  is  this :  The  deed  from  a  husband  to  a  wife,  or 
from  the  latter  to  the  former,  are  null  in  law;  this  arising  from 
their  being  regarded  as  one  person.  Very  differently,  however,  are 
they  regarded  in  a  court  of  equity.  There  they  may  sue  and  be 
sued,  contract  and  be  contracted  with,  become  the  debtor  or  cred- 
itor of  each  other,  with  like  effect,  so  far  as  regards  equitable  con- 
templation and  rights,  as  if  they  twain  had  never  become  one  flesh. 
Morrison  v.  Thistle,  67  ]\Io.  596,  and  cases  cited;  1  Bish.  Mar. 
Wom.  §§  35,  37,  713,  717.  The  deed  of  1861,  from  John  F.  Turner 
to  his  wife,  while  it  did  nof  vest  in  her  a  legal  title  to  the  lots  in 
litigation,  still  passed  to  her  an  equitable  estate. 

And  the  estate  thus  created  in  the  wife  was  an  equitable  sepa- 
rate estate.  This  is  apparent  for  two  reasons:  (1)  Because  the 
language  of  the  habendum  of  the  deed  last  mentioned  is,  "to  have 
and  to  hold  unto  the  said  Sarah  Ann  Turner,  and  to  her  sole  use 
and  benefit."  Morrison  v.  Thistle,  supra.  (2)  Because  the  deed 
was  made  directly  from  the  husband  to  the  wife.  If  the  deed 
•  had  been  made  by  a  stranger  to  the  wife,  then  a  separate  estate  in 
!  her  would  not  have  been  created,  absent  the  necessary  words; 
but,  being  made  to  the  wife  by  the  husband,  a  separate  estate,  as 
against  him,  was  the  result.  Deming  v.  ^Yilliams,  26  Conn.  226, 
68  Am.  Dec.  386;  Huber  v.  Huber,  10  Ohio,  371;  Steel  v.  Steel, 
36  N.  C.  452;  Maraman  v.  Maraman,  4  Mete.  (Ky.)  84;  McWil- 
liams  v.  Ramsay,  23  Ala.  813 ;   1  Bish.  Mar.  Wom.  §  838. 

It  being,  then,  established  that,  in  consequence  of  the  deed  of 
1861,  the  wife  became  the  owner  of  an  equitable  separate  estate  in 


94  wife's  equitable  and  statutory  separate  estate 

the  land  thereby  conveyed,  what  was  the  effect  of  her  deed,  made 
back  again  to  her  husband  in  1874?  I  can  regard  it  as  having  but 
one  effect,  and  that  was  to  convey  to  him  the  same  lands,  that  is, 
her  equitable  estate  therein,  which  prior  thereto  she  had  been  the 
recipient  of  from  him.  This  must  have  been  the  effect  of  the  deed 
of  1874,  or  else  it  had  no  effect  at  all.  But  it  may  be  urged  that 
this  deed  was  utterly  invalid  because  it  was  executed  by  the  wife 
alone.  However  this  may  be  as  to  mere  statutory  estates,  which 
require  a  joinder  of  husband  and  wife  in  order  to  their  valid  exe- 
cution, it  will  not  hold  as  to  separate  estates  in  equity,  which  the 
wife  may  charge,  mortgage,  or  convey  without  let  or  hinderance 
from  her  husband.  With  regard  to  such  property,  she  is,  in  equity, 
a  feme  sole,  and  has  the  jus  disponendi,  which  is  the  inseparable 
incident  of  ownership.  By  virtue  of  this,  she  charges,  she  incum- 
bers, or  she  absolutely  disposes  of  it,  or  she  binds  it  by  her  parol 
agreements,  just  as  any  other  owner  would.  This  position  is  sus- 
tained by  abundant  authority,  both  here  and  elsewhere.  Livings- 
ton V.  Livingston,  2  Johns.  Ch.  (N.  Y.)  537;  Whitesides  v.  Cannon, 
23  Mo.  457;  King  v.  Mittalberger,  50  Mo.  182;  McQuie  v.  Peay,  58 
Mo.  56;  Claflin  v.  Van  Wagoner,  32  Mo.  252;  Schafroth  v.  Ambs, 
46  Mo.  114;  Kimm  v.  Weippert,  46  Mo.  532,  2  Am.  Rep.  541 ;  Lin- 
coln V.  Rowe,  51  j\Io.  571 ;  De  Baun  v.  Van  Wagoner,  56  Mo.  347; 
Gay  V.  Ihm,  69  Mo.  584;  1  Bish.  Mar.  Wom.  §  853;  2  Bish.  Mar. 
Worn.  §  163 ;  Taylor  v.  Meads,  34  Law  J.  Ch.  203.  It  is  upon  the 
idea  that  a  feme  covert  possessed  of  a  separate  estate  may  convey 
it,  that  gave  origin,  in  the  conveyances  creating  such  estates,  to 
clauses  against  alienation.  1  Bish.  Mar.  Wom.  §  844.  Such  claus- 
es, the  invention  of  Lord  Thurlow,  amount  to  a  constant  assertion 
of  the  power  which  the  feme  possesses  but  for  such  prohibitions. 
Those  views  are  contrary  to  those  expressed  in  ]\Iartin  v.  Colburn. 
88  Mo.  229;  but  the  opinion  there  was  by  a  divided  court;  and, 
satisfied  now  that  it  was  erroneous,  we  all  agree  to  overrule  that 
case. 

The  husband  being  the  possesser  of  the  legal  estate  in  the  lots 
in  question,  and  having  received  from  his  wife  all  the  equitable 
estate  which,  by  his  deed  of  1861,  he  had  conveyed  to  her,  it  re- 
sults that,  at  the  time  he  made  his  will,  he  had  full  power  and 
ownership  to  dispose  of  the  lots  as  he  would;  and  that  no  reforma- 
tion of  the  deeds  of  1878  was  necessary. 

We  reverse  the  judgment,  and  remand  the  cause,  with  directions 
to  enter  judgment  for  the  defendant. 


POWER   TO    CHARGE    EQUITABLE    ESTATE    BY    CONTRACT  95 


II.  Power  to  Charge  Equitable  Separate  Estate  by  Contract  * 


WEBSTER  V.  HELM. 

(Supreme  Court  of  Tennessee,  1S94.    93  Tenn.  322,  24  S.  W.  488.)  ' 

Caldwell,  J.  *  I^Helm  purchased  two  cows  from  H.  P.  Web- 
ster at  the  price  of  $160,  for  which  he  and  his  father  and  mother 
executed  a  promissory  note,  in  the  words  and  figures  following: 
"$160.00.  Columbia,  Tenn.,  Sept.  26,  1892.  Six  months  after  date 
we  promise  to  pay  to  the  order  of  H.  P.  Webster  one  hundred  and 
sixty  dollars,  with  interest  from  date;  and  the  undersigned  Ella 
Helm  hereby  binds  and  charges  her  separate  estate,  both  real  and 
personal,  specially  with  the  payment  of  this  note.  [Signed]  De 
Helm.  D.  C.  Helm,  Security.  Ella  Helm,  Security."  Mrs.  Ella 
Helm,  the  mother,  then  owned,  and  now  owns,  a  life  estate  in  a  cer- 
tain valuable  house  and  lot  in  the  town  of  Columbia,  Tenn.,  the  same 
having  been  devised  to  her  by  her  father  to  her  sole  and  separate 
use,  without  limitation  or  restriction  upon  her  power  of  alienation. 
The  note  being  past  due  and  unpaid,  H.  P.  Webster,  for  the  use  of 
Maury  National  Bank,  to  which  he  had  transferred  it  as  collateral 
security,  filed  the  bill  in  this  cause  against  Mrs.  Ella  Helm  and  her 
husband,  to  enforce  its  collection  by  a  sale  of  her  interest  in  said 
house  and  lot.  The  ground  of  the  relief  sought,  as  stated  in  the 
bill,  is  that  Mrs.  Helm,  by  the  terms  of  the  said  note,  specially 
bound  and  charged  her  separate  estate  with  its  payment.  Mrs. 
Helm,  answering  with  her  husband,  admitted  the  execution  of  the 
note,  and  her  ownership  of  a  separate  estate,  as  herein  stated ;  but 
she  pleaded  her  coverture  as  a  bar  to  any  recovery  against  her  per- 
sonally, and  denied  that  her  agreement,  in  the  face  of  the  note,  to 
bind  and  charge  her  separate  estate,  was  of  any  force  or  validity, 
the  note  being,  as  to  her,  a  mere  surety  obligation,  assumed  with- 
out any  benefit  to  her  or  to  her  said  estate.  The  chancellor  ad- 
judged the  separate  estate  liable,  and  decreed  that  it  be  sold  for 
the  payment  of  the  debt.     Mrs.  Helm  appealed. 

"The  separate  property  of  married  women  may  be  classified  into 
the  equitable  and  the  statutory ;  the  former  being  that  recognized 
by  courts  of  equity  irrespective  of  statutes;  the  latter  that  recog- 
nized and  created  by  those  statutes  which  limit  the  common  law 
rights  of  the  husband  in  his  wife's  property,  and  which  enlarge  the 
rights  of  the  wife."  22  Amer.  &  Eng.  Enc.  Law,  2,  3.  In  this 
state  it  is  equitable,  and  not  statutory.     Therefore  the   separate 

3  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
7^77. 

4  Part  of  the  opinion  is  omitted. 


96  wife's  equitable  and  statutory  separate  estate 

estate  of  Mrs.  Helm  belongs  to  the  equitable  class,  and  is  subject 
alone  to  the  rules  applicable  thereto ;  and  what  shall  hereafter 
be  said  in  this  opinion  will  relate  exclusively  to  that  class  with- 
out calling  it  by  its  distinctive  name.  With  respect  to  the  power  of 
a  married  woman  over  her  separate  estate  there  has  been  great 
diversity  of  judicial  opinion,  both  in  England  and  in  America.  In 
one  of  the  two  principal  classes  of  cases  it  has  been  held  that  she 
has  no  power  of  disposition,  except  that  clearly  given  by  the  terms 
of  the  instrument  creating  the  estate ;  while  in  the  other  the  ruling 
has  been  that  she  has  every  power  of  disposition  except  such  as 
may  have  been  withheld  expressly  or  by  necessary  implication.  Af- 
ter some  fluctuation,  the  latter  is  now  the  prevailing  doctrine  in 
Tennessee,  as  it  is  in  England,  where  the  wife's  separate  estate  had 
its  origin.  3  Pom.  Eq.  Jur.  1104;  Adams  Eq.  *45 ;  Young  v. 
Young,  7  Cold.  461 ;  Parker  v.  Parker,  4  Lea,  392 ;  Lightfoot  v. 
Bass,  8  Lea,  350;  Grotenkemper  v.  Carver,  9  Lea,  281;  Scobey  v. 
Waters,  10  Lea,  563;  Menees  v.  Johnson,  12  Lea,  563. 

A  person  conveying  or  devising  property  to  a  married  woman  to 
her  sole  and  separate  use  may  give  her  full  power  of  disposition 
by  using  affirmative  words  to  that  effect,  or  by  mere  silence.  If, 
in  the  settlement,  he  says  nothing  on  the  subject,  he  is  presumed  to 
have  intended  that  she  be  not  limited  or  restrained  in  disposing  of 
the  property.  A  settlement  without  limitation  or  restriction,  there- 
fore, carries  with  it  unlimited  powers  of  disposition.  Unlimited 
power  of  disposition,  whether  arising  from  express  terms  of  the 
instrument  creating  the  separate  estate,  or  froin  the  absence  of  re- 
strictive words,  includes  unlimited  power  to  charge.  Williams  v. 
Whitemore,  1  Tenn.  Cas.  239;  Steifel  v.  Clark,  9  Baxt.  470,  471. 
This  seems  as  obvious  as  that  the  whole  includes  all  of  its  parts. 
With  unlimited  power  of  disposition,  the  married  woman  may  dis- 
pose of  her  separate  estate  for  any  purpose  she  may  chose,  for  her 
own  benefit  or  for  the  benefit  of  another  person ;  and,  since  unlim- 
ited power  of  disposition  includes  unlimited  power  to  charge,  as 
the  greater  includes  the  lesser,  she  may  likewise  charge  it  with 
the  payment  of  any  debt  or  engagement  she  may  make,  whether 
as  principal  for  her  own  benefit  or  that  of  her  estate,  or  as  surety 
for  the  benefit  of  another.  This  must  be  so,  for  if  she  can  dis- 
pose of  or  charge  her  property  for  but  one  purpose,  or  for  particu- 
lar purposes  only,  then  her  power  of  disposition  or  to  charge  is 
not  unlimited,  but  limited.  To  be  unlimited,  the  power  must  in- 
clude every  disposition  and  every  charge  made  with  appropriate 
formality. 

The  validity  of  a  married  woman's  sale  of  her  separate  estate 
depends — First,  upon  her  power  to  make  the  sale;  and,  secondly, 
upon  the  mode  in  which  it  was  made ;  not  upon  the  purpose  for 
which  she  disposed  of  the  property,  nor  upon  the  use  to  which 


POWER  TO   CHARGE    EQUITABLE    ESTATE    BY   CONTRACT  97 

she  put  the  purchase  money.  The  latter  matters  are  important 
only  when  made  so  by  the  terms  of  the  settlement.  The  same  is 
true  as  to  a  charge  upon  her  separate  estate.  Its  validity  depends 
upon  her  power  to  make  the  charge,  and  the  manner  in  which  'it 
was  done,  rather  than  upon  her  relation  to  the  debt  as  principal 
or  as  surety.  If  it  be  found  in  a  given  case  that  her  power  of  dis- 
position was  unlimited,  and  that  her  deed  or  her  charge  has  been 
made  according  to  the  forms  of  law,  then  a  court  of  equity  will 
enforce  her  contract  according  to  its  terms. 

It  is  well  settled  in  this  state  that  a  married  woman  owning  a 
separate  estate  without  limitation  or  restriction  upon  her  power 
of  alienation  may  charge  that  estate  "with  her  contracts  or  engage- 
ments" by  an  express  agreement  to  that  effect.  Litton  v.  Baldwin, 
8  Humph.  210,  47  Am.  Dec.  605;  Cherry  v.  Clements,  10  Humph. 
552;  Kirby  v.  Miller,  4  Cold.  3;  Shacklett  v.  Polk,  4  Heisk.  115; 
Ragsdale  v.  Gossett,  2  Lea,  736;  Jordan  v.  Keeble,  85  Tenn.  412, 
3  S.  W.  511.  That  agreement  is  sufficient,  and  will  be  enforced  in 
a  court  of  equity,  not  as  a  lien,  but  as  a  mere  charge,  if  contained  in 
the  face  of  a  promissory  note  executed  by  the  married  woman 
(Warren  v.  Freeman,  85  Tenn.  513,  3  S.  W.  513)  ;  or  if  in  parol,  the 
whole  contract  or  engagement  being  in  parol  (Eckerly  v.  McGhee, 
85  Tenn.  661,  4  S.  W.  386).  Privy  examination  is  not  essential  to 
the  efficacy  of  such  an  agreement.  Menees  v.  Johnson,  12  Lea, 
561.  In  England  and  some  of  the  states  the  intention  to  make  the 
charge  may  be  inferred;  here  it  must  be  distinctly  expressed  as 
a  part  of  the  contract.  The  will  under  which  Mrs.  Helm  holds 
the  property  here  in  question  imposed  no  limitation  or  restriction 
upon  her  power  of  disposition ;  hence,  under  the  rule  heretofore 
stated  as  now  prevailing  in  this  state,  her  power  of  disposition  was 
unlimited.  Having  unlimited  power  of  disposition,  she  also  had, 
as  an  essential  part  of  that  power,  unlimited  authority  to  charge 
such  property  with  any  contract  or  engagement  she  might  make, 
whether  it  be  for  her  own  advantage  or  merely  as  surety  for  her 
son ;  and,  having  exercised  that  authority  in  a  legally  recognized 
mode — that  is,  by  an  express  agreement  in  the  face  of  the  note — the 
charge  is  valid,  and  should  be  enforced.  That  she  owns  only  a  life 
estate  in  the  property,  and  not  the  fee,  makes  no  difference.  The 
charge  is  good  to  the  extent  of  her  interest.  Bullpin  v.  Clarke,  17 
Ves.  365  ;  Stead  v.  Nelson,  2  Beav.  245  ;  Hulme  v.  Tenant,  1  White 
&  T.  Lead.  Cas.  Eq.  *481,  and  note. 

Until  now,  this  court  has  not  held  that  a  feme  covert,  without 
express  authority  to  that  end,  may  charge  her  separate  estate  with 
the  payment  of  a  debt,  to  which  her  relation  is  one  of  suretyship 
merely.  Nevertheless,  we  think  such  is  the  plain  logic  and  neces- 
sary result  of  the  settled  ruling  that  her  power  of  disposition  is 
unlimited  when  the  instrument  under  which  she  claims  the  prop- 
COOLEY  P.&  D.Rel.— 7 


98  wife's  equitable  and  statutory  separate  estate 

erty  contains  no  limitation  or  restriction  upon  that  power.  In 
that  sense,  and  to  that  extent,  the  cases  establishing  that  rule  are 
authority  for  the  decision  made  in  this  case.     ♦     *     *     Affirmed. 


in.  Statutory  Separate  Estate* 


SIDWAY  V.  NICHOL. 
(Supreme  Court  of  Arkansas,  1896.  62  Ark.  146,  34  S.  W.  520.) 

Action  by  S.  B.  Sidway,  trustee,  and  others,  against  Nannie  W. 
Nichol  and  Charles  A.  Nichol,  her  husband,  on  a  promissory  note 
and  to  foreclose  a  mortgage  executed  by  defendants  to  secure  said 
note.  The  complaint  alleged  that  the  consideration  for  the  mort- 
gage and  note  was  money  loaned  to  said  Nannie  W.  Nichol.  The 
answer  of  defendants  did  not  deny  that  the  money  was  loaned  to 
MrsTNichol,  but  sets  up  the  defense  that  neither  she  nor  her  hus- 
band had  any  interest  in  the  estate  that  they  could  convey  by 
mortgage.  Both  Mrs.  Nichol  and  her  husband  died  before  the  ter- 
mination of  the  suit,  and  the  cause  was  revived  against  M.  W.  Tag- 
gart,  administrator  of  the  estate  of  Mrs.  Nichol,  and  William,  Jo- 
siah,  and  Curran  Nichol,  her  children  and  sole  heirs.  The  court 
found  that  the  title  to  the  land  in  question  was  held  in  trust  by  M. 
W.  Taggart  for  the  use  and  benefit  of  Nannie  W.  Nichol,  for  the 
uses  and  purposes  described  in  the  will  of  her  father,  Willoughby 
Williams,  and  that  neither  she  nor  her  husband  nor  the  said  trustee 
had  power  to  execute  the  mortgage':  The  court  rendered  a  judg- 
ment against  the  estate  of  Mrs.  Nichol  for  the  amount  of  the  note 
and  interest,  but  held  that  the  mortgage  was  void,  and  refused  to 
foreclose  the  same.    Both  parties  appealed. 

RiDDiCK,  J.  6  *  *  *  fi^Q  second  question  is,  did  the  court 
err  in  rendering  judgment  against  the  estate  of  Mrs.  Nichol  for 
the  amount  of  the  note  executed  by  her?  The  complaint  alleged 
that  the  consideration  for  the  note  was  money  loaned  to  Mrs. 
Nichol.  As  this  allegation  was  not  denied,  we  must  take  it  as  true; 
and  the  question  presented  is  whether  a  married  woman,  under  our 
law,  has  the  right  to  borrow  money  for  her  own  use  and  benefit, 
and  whether  or  not  she  becomes  personally  liable  for  the  payment 
of  a  note  executed  for  such  money.  It  has  been  frequently  held  by 
this  court  that  a  married  woman  may  make  a  contract  for  the  ben- 

6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  S  7.S. 
6  Part  of  the  opinion  liolding  the  mortgage  void  is  omitted.    The  statement 
of  facts  is  rewritten. 


STATUTORY   SEPARATE    ESTATE  99 

efit  of  herself  or  her  separate  estate,  and  that  such  contract  will 
be  enforced  against  her  separate  property.  Stowell  v.  Grider,  48 
Ark.  220,  2  S.  W.  786;  Collins  v.  Underwood,  33  Ark.  265;  Still- 
well  V.  Adams,  29  Ark.  346.  This  was  the  law  before  the  passage 
of  the  statutes  enabling  married  women  to  acquire  and  hold  prop- 
erty in  their  own  right,  free  from  the  control  of  their  husbands, 
and  without  the  aid  of  a  court  of  equity.  The  promissory  note  of 
a  married  woman,  given  for  money  borrowed  by  her  before  the 
passage  of  the  enabling  statutes,  would  have  been  enforced  in 
equity  against  her  separate  estate.  Dobbin  v.  Hubbard,  17  Ark. 
189,  65  Am.  Dec.  425;  Miller  v.  Brown,  47  Mo.  506,  4  Am.  Rep. 
345  ;  Bank  v.  Collins,  75  Mo.  281  ;  Williams  v.  Urmston,  35  Ohio  St. 
296,  35  Am.  Rep.  611 ;  Davis  v.  Bank,  5  Neb.  242,  25  Am.  Rep.  484; 

2  Kent,  Comm.  151 ;  Lawson,  Rights,  Rem.  &  Prac.  §  749. 

Such  a  contract,  before  the  enabling  statutes  were  passed,  cre- 
ated no  personal  liability  against  her,  for  the  reason  that  the  sepa- 
rate property  of  married  women,  before  the  passage  of  such  laws, 
was  altogether  a  creation  of  a  court  of  equity.  By  the  common 
law  she  could  make  no  contracts.  The  contracts  of  a  married  wo- 
man were  void  at  law,  and  were  not  recognized  by  courts  of  law. 
Inasmuch  as  her  creditors  had  no  means,  at  law,  of  compelling  the 
payment  of  her  debts,  the  courts  of  equity,  which  had  created  her 
separate  estate,  took  upon  themselves  to  enforce  her  promises,  not 
as  personal  liabilities,  but  by  laying  hold  of  her  separate  property, 
as  the  only  means  by  which  they  could  be  satisfied.  Owens  v. 
Dickenson,  Craig  &  P.  48,  54;  Pike  v.  Fitzgibbon,  17  Ch.  Div.  454; 

3  Pom.  Eq.  Jur.  §  1122,  and  cases  cited.  If  the  married  woman  | 
had  no  separate  estate,  her  creditors  w^ere  without  a  remedy ;  for  . 
^he  proceedings  to  enforce  her  promises  made  in  reference  to  her 
separate  estate  were  not  against  her  personally,  but  against  her  sep- 
"afrate  estate.  It  was  a  peculiar  remedy,  formulated  by  courts  of 
equity  to  enforce  promises  which  at  law  were  void.  Ex  parte 
Jones,  12  Ch.  Div.  484;  3  Pom.  Eq.  Jur.  §  1122,  and  note. 

While  the  law  stood  in  this  condition,  our  constitution  was 
adopted,  and  statutes  were  enacted  providing  that  property  owned 
by  a  married  woman  at  the  time  of  her  marriage,  or  acquired  after- 
wards, should  be  and  remain  her  sole  and  separate  property ;  al- 
lowing  her  to  bargain,  sell,  assign,  and  transfer  such  property,  and 
to  engage  in  trade  or  business  on  her  own  account;  providing  that 
no  bargain  or  contract  made  by  her  in  respect  to  her  sole  and 
separate  property,  business,  or  services  shall  be  binding  on  her 
husband,  or  render  him  or  his  property  in  any  way  liable  therefor, 
but  that  she  may  alone  sue  or  be  sued  in  the  courts  of  this  state 
on  account  of  said  separate  property,  business,  or  services;  and 
further  providing  that  any  judgment  against  her  may  be  enforced 
by  execution  against  her  sole  and  separate  estate  or  property  to 
the  same  extent  and  in  the  same  manner  as  if  she  were  sole.    Sand. 


)■ 


100       wife's  equitable  and  statutory  separate  estate 

&  H,  Dig.  §§  4945^951.  The  object  and  effect  of  these  statutes 
were  to  make  a  radical  change  in  the  law  as  regards  the  rights  and 
powers  of  married  women. 

Every  married  woman  of  this  state  who  acquired  property  after 
the  passage  of  these  laws  became  at  once  the  owner  of  a  separate 
estate.  It  is  no  longer  an  equitable  estate,  to  be  recognized  alone 
by  courts  of  equity ;  but  it  is,  by  virtue  of  the  statute,  a  legal  estate, 
recognized  by  courts  of  law  as  well  as  of  equity.  These  laws  do 
not  give  the  wife  power  to  contract  generally.  Her  note  given  as 
surety  for  the  debt  of  another  would  not  bind  her,  or  be  enforced 
against  her  property.  But  they  do  give  her  power  to  contract  in 
reference  to  her  services,  her  separate  estate,  and  in  respect  to 
a  separate  business  carried  on  by  her.  The  statute  not  only  author- 
izes her  to  make  such  contracts,  but  expressly  provides  that  she 
may  alone  sue  or  be  sued  in  the  courts  of  this  state  on  account  of 
such  "property,  business  or  services."  Id.  §  4946.  It  has  been 
twice  held  by  this  court  that  under  this  statute  the  contracts  of  a 
married  woman  in  relation  to  her  separate  business  create  a  per- 
sonal liability  against  her.  Hickey  v.  Thompson,  52  Ark.  238,  12 
S.  W.  475 ;  Trieber  v.  Stover,  30  Ark.  727.  It  follows,  upon  the 
same  reasons,  that  a  contract  in  reference  to  her  separate  property 
creates  also  a  personal  liability ;  for  the  statute  intends  such  con- 
tracts— as  much  so  as  it  does  those  concerning  her  separate  busi- 
ness. "The  right  to  contract,"  said  Justice  Schofield  in  Haight  v. 
McVeagh,  "is  indispensable  to  the  acquisition  of  earnings,  and  to 
the  unrestricted  possession,  control,  and  enjoyment  of  property." 
Haight  v.  McVeagh,  69  111.  628;   Hickey  v.  Thompson,  supra. 

The  purpose  of  the  statute  was  to  permit  married  women  to  ac- 
quire and  hold  property  without  the  intervention  of  a  trustee  or  a 
court  of  equity.  In  order  that  she  may  be  free  to  acquire  property, 
it  permits  her  to  make  contracts,  binding  upon  herself,  in  regard 
to  such  property ;  and  it  provides  that  her  husband  shall  not  be  li- 
able upon  such  contracts,  but  that  she  alone  may  be  sued  thereon. 
So  we  think  that,  if  this  was  a  contract  in  reference  to  the  sepa- 
rate property  of  Mrs.  Nichol,  it  created  a  personal  liability  against 
her,  and  the  judgment  was  proper.  Imprisonment  for  debt  hav- 
ing been  abolished,  the  only  effect  of  a  personal  judgment  against 
a  married  woman  is  to  render  her  property  liable  for  its  satisfac- 
tion. 

Was  this  a  contract  in  regard  to  the  separate  property  of  Mrs. 
Nichol?  If  a  married  woman  who  owns  separate  property  binds 
that  property  to  pay  for  other  property  which  she  buys,  such 
property  becomes  a  part  of  her  separate  estate.  "If  she  has  no 
separate  estate,"  says  Mr.  Kelly  in  his  work  on  Contracts  of  Mar- 
ried Women,  "there  has  been  considerable  conflict  on  the  question 
whether  or  not  she  can  purchase  on  a  credit,  so  as  to  create  a  sep- 
arate estate;    yet  the  true  doctrine  appears  to  be  that  a  married 


STATUTORY   SEPARATE    ESTATE 


101 


woman  can  purchase  on  credit,  and  the  purchase  will  be  her  sep- 
arate estate."    Kelly,  Cont.  Mar.  Worn.  p.  160. 

In  a  Michig-an  case  the  defendant,  a  married  woman,  was  sued 
for  the  price  of  furniture  purchased  by  her.  Among  other  de- 
fenses, it  was  contended  that  the  contract  did  not  concern  her  sep- 
arate property,  and  was  therefore  not  within  the  statute.  In  an 
opinion  delivered  by  Mr.  Justice  Cooley,  he  said:  "The  contract 
is  for  the  acquisition  of  sole  property,  and  the  title  to  it,  or  at 
least  a  right  in  relation  to  it,  vests  when  the  contract  is  made. 
There  is  therefore  no  straining  of  terms  in  saying  that  the  contract 
has  relation  to  her  sole  property.  The  statutes  on  this  subject  es- 
tablish a  new  system.  *  *  *  The  rule  which  they  establish 
is  one  of  general  capacity  to  own  property,  and  to  make  valid  con- 
tracts, binding  in  law  and  in  equity,  in  relation  to  it ;  and  I  dis-  , 
cover  nothing  in  the  statute  which  so  limits  that  capacity  as  to 
prevent  her  making  the  first  acquisition,  any  more  than  any  subse- 
quent one,  on  credit."  Tillman  v.  Shackleton,  15  Mich.  456,  93 
Am.  Dec.  198.  In  the  case  of  Wilder  v.  Richie,  117  Mass.  382,  it 
was  held  that  a  married  woman  may  bind  herself  by  agreements 
for  the  acquisition  of  property  to  her  separate  use,  and  that  nc 
distinction  could  be  made  between  monev  and  other  personal  prop- 
erty. In  Loan  Ass'n  v.  Jones,  32  S.  C.  313,  10  S.  E.  1079,  the  su- 
preme court  of  South  Carolina  held  that,  when  a  married  woman 
borrows  money,  it  becomes  at  once  a  part  of  her  separate  estate,  and 
that  her  contract  to  repay  it  is  a  contract  with  reference  to  her 
separate  estate,  which  may  be  enforced  against  her. 

Our  conclusion  is  that  a  married  woman  has,  under  our  law, 
the  right  to  purchase  personal  property,  or  borrow  money  for  her 
separate  use,  and  that  the  property  purchased  or  money  borrowed 
becomes  her  separate  property.  Her  contract  to  pay  for  the  same 
is  a  contract  in  reference  to  her  separate  property,  and  creates  a 
personal  obligation,  valid  in  law  and  in  equity,  and  this  without 
regard  to  whether  she  owned  any  additional  property  or  not.  Hays 
V.  Jordan,  85  Ga.  741,  11  S.  E.  833,  9  L.  R.  A.  Z7Z;  Arthur  v.  Cav- 
erly,  98  Mich.  82,  56  N.  W.  1102;  Russel  v.  Bank,  39  Mich.  671,  33 
Am.'  Rep.  444;  Johnson  v.  Sutherland,  39  Mich.  579;  Gaynor  v. 
Blewett,  86  Wis.  401,  57  N.  W.  44;  Carriage  Co.  v.  Pier,  74  Wis. 
585,  43  N.  W.  502;  Houghton  v.  Milburn,  54  Wis.  564.  11  N.  W. 
517,  12  N.  W.  23;  Conway  v.  Smith,  13  Wis.  125;  Haight  v.  Mc- 
Veagh,  69  111.  625  ;  Cookson  v.  Toole,  59  111.  515  ;  Orr  v.  Bornstein, 
124  Pa.  311,  16  Atl.  878;  Institution  v.  Uihn,  34  S.  C.  184,  13  S.  E. 
357.  To  hold  otherwise  would  be  to  say  that,  although  the  stat- 
ute gives  a  married  woman  the  right  to  acquire  and  hold  property, 
yet,  that  if  she  undertakes  to  acquire  it  by  contract,  the  law  will 
treat  such  contract  as  of  no  validity. 

Under  that  view  of  the  statutes,  a  married  woman  who  had  no 
separate  estate  could  make  no  valid  contract  for  the  acquisition 


102       wife's  equitable  and  statutory  separate  estate 

of  property,  however  desirable  and  beneficial  the  ownership  of  it 
might  be  to  her.  If  she  was  a  seamstress,  and  needed  a  sewing 
machine,  or  a  music  teacher,  and  needed  a  piano,  she  could  make 
no  contract  for  a  purchase  upon  credit.  If  she  borrowed  money 
with  which  to  purchase  property,  her  note  given  for  the  money 
would  be  void.  This  was  her  condition  before  the  passage  of  the 
enabling  acts.  Such  a  construction,  it  seems  to  us,  would,  to  a 
large  extent,  nullify  the  statutes  which  were  intended  to  emanci- 
pate married  women  from  many  of  the  trammels  of  the  common 
law,  and  permit  them  to  contract  for,  acquire,  and  hold  property. 
We  therefore  hold  that  a  married  woman  has  the  right  to  acquire 
money  or  other  property  by  contract,  and  that  her  contract  for  the 
payment  of  money  borrowed  or  property  purchased  is  as  valid  and 
binding  upon  her  as  if  she  were  a  feme  sole. 

We  have  not  overlooked  the  case  of  Walker  v.  Jessup,  43  Ark. 
167,  and  other  cases  by  this  court  holding  that  a  married  woman 
cannot  make  an  executory  contract  of  the  purchase  or  conveyance 
of  land,  binding  upon  her  or  her  heirs.  There  may  be  reasons  why 
the  executory  contracts  of  a  married  woman  in  respect  to  real 
estate  should  not  be  enforced  against  her.  That  question  is  not 
before  us,  and  we  do  not  overrule  those  cases.  But  so  far  as  the 
former  decisions  of  this  court  may  have  intimated  that  the  con- 
tracts of  a  married  woman  in  respect  to  her  separate  property,  and 
for  its  benefit,  though  valid  and  binding  upon  her  in  equity,  create 
no  personal  obligation  on  her  part,  and  can  only  be  enforced  by  a 
proceeding  in  a  court  of  equity  against  her  separate  property,  the 
same  are  overruled. 

The  decree  of  the  circuit  court  is  afiSirmed.  Motion  for  rehear- 
ing overruled. ' 


IV.  Power  to  Dispose  of  Statutory  Separate  Estate 


HARRIS  V.  SPENCER. 

(Supreme  Court  of  Errors  of  Connecticut,  1S9S.     71  Conn.  233,  41  Atl.  773.) 

Bill  by  Thomas  Harris  against  Emma  E.  Spencer.  There  was  a 
decree  for  defendant,  and  plaintiff  appeals. 

Andrews,  C.  J.  The  plaintiff  set  forth  in  the  complaint  that  his 
intestate,  who  was  his  wife,  in  her  lifetime  owned  eight  shares  of 

7  Accord:  Scottish  Co.  v.  Deas,  35  S.  C.  42,  14  S.  E.  4S6,  28  Am.  St.  Rep. 
832  (1892).  See,  also,  Kriz  v.  Peege,  119  Wis.  105.  95  N.  W.  108  (1903),  hold- 
ing that  a  married  woman  may  acquire  a  leasehold  by  purchase  and  be  liable 
for  rent,  though  she  has  no  business  or  separate  estate  other  than  that  pur- 
ehase. 

8  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §  79. 


POWER   TO    DISPOSE    OF   STATUTORY    SEPARATE    ESTATE  103 

a  certain  ^ock  worth  $2,000;  that  shortly  before  her  death  she 
transferred  said  shares  by  a  transfer  apparently  absolute,  to  the 
defendant;  that  his  said  wife  "did  not  make  such. transfer  of  her 
own  free  choice  and  will,  but  in  consequence  of  the  unlawful  and 
fraudulent  and  deceitful  acts  and  inducements  exercised  upon  and 
towards  her  by  the  defendant."  This  transfer  was  made  on  the 
2d  day  of  August,  1897.  Mrs.  Harris  died  on  the  28th  day  of  Sep- 
tember next  following.  In  his  prayer  for  relief  "the  plaintiff  claims 
by  way  of  equitable  relief  that  said  transfer  of  stock  so  obtained 
by  the  defendant  from  the  said  Cora  Harris  may  be  set  aside,  and 
declared  null  and  void,  and  that  title  thereto  may  be  vested  in  the 
plaintiff,  as  administrator  on  the  estate  of  the  said  Cora  Harris." 

The  plaintiff,  as  the  administrator  of  Cora  Harris,  takes  the  ti- 
tle to,  and  is  entitled  to  have  the  possession  of,  all  the  personal 
property  of  which  she  was  the  owner  at  the  time  of  her  death.  If 
Cora  Harris  was,  on  the  day  of  her  death,  the  owner  of  the  said 
shares  of  stock,  then  the  plaintiff  is  entitled  to  have  this  prayer 
for  relief  granted;  otherwise  not.  The  question  may  be  stated  in 
this  way :  Did  Mrs.  Harris,  on  the  last  day  of  her  life,  have  such 
a  right  to  these  shares  of  stock  that  she  might  have  maintained  a 
suit  therefor  against  the  present  defendant?  Stated  in  this  way, 
the  answer  comes  from  the  finding.  The  trial  court  has  found 
that  the  transfer  of  the  said  shares  was  an  absolute  gift  by  Mrs. 
Harris  to  the  defendant,  perfected  by  the  change  of  possession ; 
and  that  it  was  without  fraud,  illegality,  or  undue  influence.  This 
finding  is  decisive.  Mrs.  Harris  could  not,  at  any  time  in  her  life, 
after  making  that  gift,  have  maintained  a  suit  therefor  against  the 
defendant.  It  is  clear  that  as  administrator  the  plaintiff  shows  no 
ground  for  a  decree  in  his  favor.  As  respects  him,  a  title  by  gift 
in  the  defendant  is  not  distinguishable  from  a  title  by  purchase  for 
a  valuable  consideration.  Camp's  Appeal,  36  Conn.  92,  4  Am.  Rep. 
39.    See,  also,  Gilligan  v.  Lord,  51  Conn.  562. 

This  case  has  been  argued  here  (it  seems  to  have  been  tried  in 
the  court  below)  as  though  the  plaintiff  was  seeking  to  recover, 
not  as  administrator,  but  in  his  own  right  as  husband.  The  plain- 
tiff and  his  wife  were  married  on  the  3d  day  of  March,  1897.  The 
claim  of  the  plaintiff  in  this  behalf  is  that,  as  by  Gen.  St.  §  623,  he 
would  be  entitled  to  an  interest  in  the  property  which  his  wife 
might  leave  at  her  death,  she  could  not,  by  a  voluntary  gift  of  all 
her  property  in  her  lifetime,  deprive  him  of  that  interest.  This 
claim  cannot  be  sustained.  These  shares  of  stock  belonged  to 
Mrs.  Harris  at  the  time  of  her  marriage  to  this  plaintiff.  Ajip- 
jither  part  of  the  same  statute  (now  section  2796)  provides  that 
as  to  all  property  held  by  a  woman  at  the  time  of  her  marriage 
"she  shall  have  power  to  make  contracts  with  third  persons  and 
to  convey  to  them  her  real  and  personal  estate  as  if  unmarried." 
If,  being  an  unmarried  woman,  Mrs.  Harris  had  power  to  make 


104        wife's  equitable  and  statutory  separate  estate 

the  gift  which  she  made  to  the  defendant,  so  that  it  would  have 
been  a  valid  and  binding  one,  being  a  married  woman,  her  power  to 
make  the  gift  is  no  less;  the  gift  is  equally  valid  and  binding  on 
her  and  her  estate.  The  language  of  the  statute  gives  her  such 
power.  Comstock's  Appeal,  55  Conn.  214,  10  Atl.  559;  Spitz's 
Appeal,  56  Conn.  184,  14  Atl.  776,  7  Am.  St.  Rep.  303. 

The  fact  that  the  plaintiff  and  his  wife  were  married  since  1877, 
and  that,  outliving  his  wife,  he  would  be  entitled  to  a  portion  of 
her  estate  under  the  statute  of  that  year,  is  clearly  immaterial. 
That  statute  gives  to  a  surviving  husband  a  share  of  the  property 
owned  by  his  wife  at  her  decease.  It  does  not  prevent  the  wife, 
during  her  life,  from  disposing  of  her  property  in  any  lawful  way 
that  she  pleases,  or  incumbering  it  by  any  lawful  agreement.  Cro- 
fut  V.  Layton,  68  Conn.  100,  35  Atl.  783.  Since  the  statute  of  1877 
a  married  woman  has  at  law,  over  all  her  property  during  her  life, 
the  same  power  that  she  had  prior  to  that  statute,  in  equity,  over 
her  sole  and  separate  estate — complete  dominion.  Imlay  v.  Hunt- 
ington, 20  Conn.  175,  citing  Jaques  v.  Methodist  Episcopal  Church, 
17  Johns.  (N.  Y.)  548,  8  Am.  Dec.  447;  Story,  Eq.  §  1390.  Mrs. 
Harris  owed  no  debt  or  duty  to  the  plaintiff  in  respect  to  these 
shares  of  stock,  and  she  might  do  with  them  whatsoever  was  her 
pleasure.    Ullrich  v.  Ullrich,  68  Conn.  580,  Zl  Atl.  393. 

There  is  no  error.    The  other  judges  concurred. 


WICKER  v.  DURR. 

(Supreme  Court  of  Pennsylvania,  1909.     225  Pa.  305,  74  Atl.  64.) 

Action  by  John  H.  Wicker  and  others  against  Henry  Gustave 
Durr  and  George  Chadams.  Judgment  for  plaintiff's,  and  defend- 
ants appeal.  The  record  disclosed  that  the  land  in  question  was 
conveyed  to  Anna  M.  Davis.  Subsequently  she  married  Ferdinand 
Durr,  and  thereafter  she  executed,  sealed,  and  delivered  a  deed  to 
him  for  the  property  which  he  placed  of  record.  Ferdinand  Durr 
died  and  devised  the  property  to  Henry  Gustave  Durr;  Anna  M. 
Durr  died  intestate  leaving  the  plaintiffs  as  her  heirs  at  law. 

Per  Curiam.  The  only  question  raised  by  the  appeal  is  whether 
a  married  woman  can  make  a  valid  conveyance  of  her  separate  real 
estate  by  deed  to  her  husband  as  grantee,  which  she  alone  signs, 
seals,  and  acknowledges,  but  which  he  accepts  and  places  upon 
record.  It  has  been  uniformly  held  that  a  married  woman  has  no 
power  to  convey  her  real  estate  except  in  the  precise  mode  pre- 
scribed by  the  statute  conferring  the  power.  Her  power  to  convey 
is  conferred  by  the  statute,  and  the  mode  pointed  out  by  it  is  im- 
perative. Trimmer  v.  Heagy,  16  Pa.  484.  Neither  the  act  of  April 
11,  1848  (P.  L.  536),  nor  the  act  of  June  8,  1893  (P.  L.  344),  changed 


POWER   TO    CHARGE    STATUTORY    ESTATE    BY    CONTRACT  105 

the  provisions  of  the  act  of  February  24,  1770  (1  Smith's  Laws, 
p.  307),  requiring  a  husband  to  join  in  the  conveyance  of  a  wife's 
real  estate.  The  acts  of  1848  and  1893  materially  enlarged  a  mar- 
ried woman's  control  of  her  separate  estate,  but  they  left  undis- 
turbed the  mode  of  its  exercise  in  the  conveyance  of  her  real  estate. 
The  latter  act  expressly  preserved  it  by  the  provision  that  "she 
may  not  mortgage  or  convey  her  real  property  unless  her  husband 
^dins  in  such  mortgage  or  conveyance."  Bingler  v.  Bowman,  194 
Tir210,  45  Atl.  80. 

The  judgment  is  affirmed. 


V.  Power  to  Charge  Statutory  Separate  Estate  by  Contract ' 


DETROIT  CHAMBER  OF  COMMERCE  v.  GOODMAN. 

(Supreme  Court  of  Michigan.  1896.     110  Mich.  498,  68  N.  W.  295,  35 

L.  R.  A.  96.) 

MooRE,  J.  ^°  The  plaintiff  sued  the  defendant  to  recover  for  an 
amount  due  on  a  subscription  reading  as  follows:  "Detroit,  Mich., 
1892.  We,  the  undersigned,  being  desirous  of  locating  the  new 
Chamber  of  Commerce  Building  on  the  northeast  corner  of  State 
and  Griswold  streets,  where  the  directors  of  said  association  have 
agreed  to  purchase  a  site  88x100,  if  it  can  be  had  for  $60,000.00,  to 
provide  for  the  difference  between  that  amount  and  the  cost  of  the 
property,  viz.  $118,000,  hereby  agree  to  pay  to  the  treasurer  of  the 
Chamber  of  Commerce  Association  the  sum  set  opposite  our  names 
upon  the  following  conditions  and  in  the  following  manner."  Then 
follow  the  conditions  and  list  of  subscribers.  The  subscription 
was  not  paid.  The  plaintiff  sued  the  defendant,  and  obtained  judg- 
ment.    The  defendant  appeals.     *     *     * 

The  only  important  question  upon  the  record  is,  was  it  competent 
for  Mrs.  Goodman  to  make  this  subscription?  When  it  was  made 
she  was  a  married  woman,  who  owned  the  Griswold  House,  worth, 
with  the  real  estate,  about  $100,000.  This  property  was  about  a 
block  away  from  the  proposed  Chamber  of  Commerce  site.  The 
plaintiff  claims  that  defendant's  subscription,  with  others,  was  the 
moving  cause  of  their  purchasing  the  site.  That  it  was  believed 
by  the  defendant  that,  if  the  old  livery  stable  occupying  the  site 
was  torn  away,  and  a  fine  building  erected  thereon,  it  would  in- 
crease the  value  of  defendant's  property  many  times  more  than 

9  For  discussion  of  principles,  see  Tiffany,.  Persons  &  Dom.  Rel.  (3d  Ed.)   §§ 
80-82. 

10  Part  0,^  the  opinion  of  Moore,  J.,  is  omitted.. 


106       wife's  equitable  and  statutokt  separate  estate 

the  amount  of  her  subscription,  and  for  that  reason  the  subscrip- 
tion was  made  by  her.  It  is  also  argued  that  the  erection  of  the 
Chamber  of  Commerce  Building  did  increase  the  value  of  her  prop- 
erty, that  her  separate  estate  was  benefited,  and  that  she  is  not  un- 
der disability  under  the  statute.  On  the  part  of  the  defendant  it 
is  claimed  that  under  the  common  law  she  could  not  make  this 
contract,  and  that  the  married  woman's  act  (How.  Ann.  St.  § 
6295)  does  not  allow  her  to  make  such  a  contract.  It  is  claimed 
that  she  may  contract,  sell,  transfer,  convey,  devise,  or  bequeath  her 
real  and  personal  estate,  and  cannot  do  more;  that  her  power  is 
not  general,  but  statutory;  that  possible  incidental  benefits  cannot 
support  a  contract  made  by  her — citing  Russel  v.  Bank,  39  Mich. 
674,  33  Am.  Rep.  444;  Powers  v.  Russell,  26  Mich.  179;  Emery  v. 
Lord,  26  Mich.  431;  West  v.  Laraway,  28  Mich.  464;  Johnson  v. 
Sutherland,  39  Mich.  579. 

The  relations  of  husband  and  wife  towards  each  other  and  their 
property  rights  under  the  common  law  are  very  exhaustively  dis- 
cussed in  the  case  of  Tong  v.  Marvin,  15  Mich.  60.  Justice  Cooley 
also  gives  an  interesting  history  in  this  case  of  the  early  legisla- 
tion in  this  state  in  relation  to  the  rights  of  married  women,  by 
which  it  was  made  to  appear  that  the  purpose  of  this  legislation 
was  to  preserve  to  the  wife  all  her  rights  in  her  own  property, 
with  as  full  pOAver  of  control  and  disposition  as  if  she  had  re- 
mained unmarried.  It  has  been  uniformly  held  by  this  court  that 
our  statutes  do  not  authorize  a  married  woman  to  become  person- 
ally liable  on  an  executory  promise,  except  concerning  her  estate 
already  possessed,  or  referring  to  it,  or  in  relation  to  the  property 
to  be  acquired  by  the  contract,  or  in  consideration  of  it.  A  note 
given  for  any  other  consideration  is  void  (Insurance  Co.  v.  Mc- 
Clellan,  43  Mich.  564,  6  N.  W.  88),  and  unless  the  consideration  foi 
this  subscription  relates  to  her  separate  estate  already  owned  by 
her,  or  referring  to  it,  or  in  relation  to  property  to  be  acquired 
by  the  contract,  or  in  consideration  of  it,  it  would  be  void.  On  the 
other  hand,  if  the  consideration  of  this  subscription  was  that  the 
estate  which  slie  then  possessed  was  to  be  increased  in  value,  and 
if,  as  a  result  of  what  was  done,  her  estate  in  fact  was  increased 
in  value,  would  it  not  be  a  sufficient  consideration  for  the  contract, 
and  make  it  valid? 

In  Tillman  v.  Shackleton,  15  Mich.  447,  93  Am.  Dec.  198,  it 
was  held  that,  where  a  married  woman  keeps  a  boarding  house 
with  the  consent  of  her  husband,  and  controls  the  entire  busi- 
ness, contracts  of  purchase  made  by  her  for  the  purposes  of  the 
business  must  be  considered  as  contracts  in  relation  to  her  sole 
property,  and  therefore  binding  upon  her.  In  Campbell  v.  White, 
22  Mich.  185,  it  was  held  that  a  married  woman  residing  with 
her  husband,  and  owning  a  separate  estate,  could  be  held  liable 
for  the  merchandise  purchased  by  her  on   her  individual  credit, 


POWER   TO    CHARGE    STATUTORY   ESTATE    BY   CONTRACT  107 

though  the  merchandise  was  family  necessaries,  and  was  actu- 
ally used  by  the  husband's  family,  and  in  his  household.  Her 
liability  was  not  contingent  upon  her  ownership  of  other  sepa- 
rate estates,  or  on  the  character  of  the  goods  bought,  or  their 
disposition.  It  depended  on  the  fact  that  the  property  was  ob- 
tained upon  her  credit.  Her  promise  to  pay  for  the  articles  was  an 
undertaking  to  pay  for  her  separate  property.  In  Rankin  v.  West, 
25  Mich.  195,  it  was  held  that  a  married  woman  could  carry  on 
a  meat  market  in  her  own  name,  and  that  an  agreement  to  pay 
for  stock  furnished  to  supply  the  market  was  valid,  though  the 
business  was  carried  on  by  her  husband  acting  as  agent.  In  Hirsh- 
field  V.  Waldron,  83  Mich.  116,  47  N.  W.  239,  it  was  held  that  a 
married  woman  living  with  her  husband  is  liable  for  the  price 
of  clothing  purchased  by  her  for  a  minor  son,  and  charged  to  her 
by  her  direction,  she  agreeing  to  pay  for  the  same. 

These  decisions  seem  to  be  put  upon  the  ground  that  the  sale 
of  the  property  was  the  consideration  for  her  promise,  and  made 
her  liable  under  the  statute.  The  purchase  of  the  goods  by  her 
made  them  her  separate  property.  The  use  made  of  them  after- 
wards was  not  material.     *     *     * 

In  Gillespie  v.  Beecher,  94  Mich.  374,  54  N.  W.  167,  it  was  said : 
"The  married  woman's  act  was  passed  for  the  protection  of  mar- 
ried women.  It  was  intended  as  a  shield,  and  not  as  a  sword. 
Its  purpose  was  to  enlarge  her  rights,  and  not  to  contract  them ; 
and  certainly  it  was  not  meant  to  deprive  her  of  the  right,  either 
acting  alone  or  joining  with  others,  of  protecting  her  interests  in 
property,  either  real  or  personal." 

I  think  the  doctrine  to  be  gathered  from  these  cases  is  that,  if 
the  debt  or  obligation  made  by  a  married  woman  is  incurred  on 
account  of  her  own  separate  property,  or  if  the  agreement  was 
concerning  property  then  owned  by  her  or  to  be  acquired  by  her  in 
consideration  of  the  contract  or  agreement,  she  would  be  liable. 
Would  the  subscription  sued  upon  come  within  either  of  those 
conditions?  If  this  had  been  a  contract  to  increase  the  value  of 
her  property  by  making  improvements  upon  it,  there  could  not  be 
any  question  of  her  liability.  If  her  purpose  in  making  this  sub- 
scription was  to  increase  the  value  of  her  property  by  having  im- 
provements made  in  its  immediate  vicinity,  which  would  not  be 
made  unless  the  subscription  was  made,  I  think  it  becomes  a  con- 
tract concerning  her  separate  property ;  and  if,  as  a  result  of  her 
subscription,  substantial  improvements  are  made  which  increase 
the  value  of  her  property,  she  does,  in  fact,  acquire  property  as  a 
consideration  for  her  subscription,  and  she  would  be  liable  upon 

1  -^  'i'         ^         "I* 

Gr.\nt,  J.,  concurred  with  Moore,  J. 

Montgomery,  J.  I  agree  fully  with  my  Brother  Moore  that  the 
enlaiged  powers  of  a  married  woman,  under  the  married  woman's 


108       wife's  equitable  and  statutory  separate  estate 

act  (section  6295,  How.  Ann.  St.),  include  the  right  not  only  to 
dispose  of  property  already  acquired,  but  to  make  contracts  for 
the  acquisition  of  property,  and  contracts  directly  relating  to  prop- 
erty owned  by  her.  But  I  am  not  able  to  agree  that  an  execu- 
tory contract  made  by  a  married  woman,  by  which  she  agrees  to 
donate  money  for  any  enterprise,  public  or  private,  which  may  in- 
cidentally benefit  her  property,  is  enforceable.  The  statute  reads 
that  "the  real  estate  of  every  female,  acquired  before  marriage, 
and  all  property,  real  and  personal,  to  which  she  may  afterwards 
become  entitled,  by  gift,  grant,  inheritance  or  devise,  or  in  any 
other  manner,  shall  be  and  remain  the  estate  and  property  of  such 
female,  and  shall  not  be  liable  for  the  debts,  obligations  and  en- 
gagements of  her  husband,  and  may  be  contracted,  sold,  transfer- 
red, mortgaged,  conveyed,  devised  or  bequeathed  by  her  in  the 
same  manner,  and  with  a  like  effect,  as  if  she  were  unmarried." 
The  statute  does  not  intend  to  remove  all  the  common-law  dis- 
abilities resting  upon  married  women.  The  design  was  to  confer 
upon  a  wife  the  right  to  enjoy  and  dispose  of  her  own  property, 
and  to  acquire  property,  and  the  statute  should  not  be  extended 
by  construction  to  cases  not  embraced  in  its  language,  nor  within 
its  design.    See  De  Vries  v.  Conklin,  22  Mich.  259. 

Such  an  engagement  as  that  involved  in  this  case  is  not  one  by 
which  the  wife  conveys  or  grants  her  property,  nor  is  it  one  by 
which  she  acquires  property  by  gift,  grant,  inheritance,  or  in  any 
other  manner.  The  most  that  can  be  said  is  that  an  incidental  ben- 
efit may  result  to  property  which  she  already  owns.  In  Russel 
V.  Bank.  39  Mich.  671,  33  Am.  Rep.  444,  it  was  said  by  Mr.  Jus- 
tice Cooley :  "The  test  of  competency  to  make  the  contract  is  to 
be  found  in  this;  that  it  does  or  does  not  deal  with  the  woman's 
individual  estate.  Possible  incidental  benefits  cannot  support  it." 
It  is  true  that  case  was  a  case  involving  suretyship,  but  it  is  no 
more  true  in  this  case  than  in  that  that  by  the  contract  engage- 
ment the  married  woman  acquires  property,  and  in  that  case  as 
well  as  this  there  was  the  contention  and  the  fact  of  incidental 
benefit  to  the  married  woman  to  result  from  the  engagement.  I 
think  the  reasoning  of  that  case  not  inapplicable,  and,  basing  my: 
conclusion  upon  the  statute  itself,  I  am  convinced  that  this  under- 
taking is  not  within  the  power  conferred  upon  married  women  by 
the  act. 

The  judgment  will  be  reversed,  with  costs,  and  no  new  trial 
granted.  — «™-»-.^ 

Long,  C.  J.,  and  Hooker,  J.,  concurred  with  Montgomery,  J. 


POWER   TO    CHARGE    STATDTORT    ESTATE   BY    CONTRACT  109 


KUHN  V.  OGILVIE. 

(Supreme  Court  of  Pennsylvania,  1896.     178  Pa.  303,  35  Atl.  957.) 

.Scke  facias  by  Henry  H.  Kuhn,  trustee,  against  Ada  J.  Ogilvie, 
on  a  mortgage.  From  a  judgment  in  favor  of  plaintiff,  defendant 
appealed. 

Mitchell,  J.  A  mortgage  being  in  many  respects  treated  as  a 
mere  security,  though  in  form  a  conveyance,  it  might  well  have 
b"een  held  that  a  mortgage  by  a  married  woman  to  secure  her  hus- 
band's debt  is  in  substance  a  contract  of  suretyship,  which  she  was 
not,  at  common  law,  capable  of  making.  But,  on  the  other  hand, 
she  has,  under  the  law  of  Pennsylvania,  the  right  of  every  owner 
to  convey  her  estate,  subject  to  certain  conditions  as  to  mode,  etc.; 
and,  as  she  could  sell  or  mortgage,  and  give  the  money  immediately 
to  her  husband,  there  was  no  substantial  reason  why  she  should 
not  subject  her  estate  to  a  merely  contingent  liability  for  the  same 
purpose.  When  the  case  of  Hoover  v.  Samaritan  Soc,  4  Whart. 
445,  came  before  this  court,  the  latter  argument  prevailed,  and  it 
was  held  that  a  married  woman  could  use  a  power  of  appointment 
to  execute  a  mortgage  as  collateral  to  her  husband's  bond  for 
money  loaned  to  him.  This  view  has  been  steadfastly  adhered 
to,  and  it  is  now  the  established  rule  that  a  married  woman  may 
mortgage  her  estate  as  security  for  her  husband's  debt,  including 
future  advances  to  him,  or  for  the  debt  of  any  other  person.  Haf- 
fey  V.  Carey,  73  Pa.  431;  Hagenbuch  v.  Phillips,  112  Pa.  284,  3 
Atl.  788;   Bank  v.  Kuntz,  175  Pa.  432,  34  Atl.  797. 

This  being  settled,  the  only  question  left  open  in  the  present 
case  is  whether  the  rule  has  been  changed  by  the  act  of  June  8, 
1893  (P.  L.  344).  It  will  be  observed  that  the  cases  last  cited  were 
decided  after  the  married  woman's  act  of  1848,  and  it  was  held 
that  the  capacity  of  a  married  woman  to  mortgage  her  estate  was 
not  affected  by  that  act,  the  purpose  of  which  was  to  restrict  the 
husband's  power  and  that  of  his  creditors,  not  that  of  the  wife 
herself.  The  act  of  1893  is  a  further  step  in  the  same  direction, 
and,  instead  of  contenting  itself  with  restricting  the  power  of  the 
husband,  it  affirmatively  enlarges  the  power  of  the  wife.  The  first 
section  provides  for  her  control  over  her  estate,  including  convey- 
ance and  mortgage  of  realty  when  her  husband  joins.  The  sec- 
ond section  authorizes  her  to  "make  any  contract  in  writing  or 
otherwise,  which  is  necessary,  appropriate,  convenient  or  advan- 
tageous to  the  exercise  or  enjoyment  of  the  rights  and  powers 
granted  by  the  foregoing  section,  but  she  may  not  become  accom- 
modation indorser,  maker,  guarantor  or  surety  for  another."  It 
is  upon  this  last  clause  that  the  argument  for  the  appellant  rests. 
It  is  clear,  however,  that  this  was  a  cautionary  proviso  against 
too  liberal  a  construction  of  the  very  large  powers  conferred  by 


110       wife's  equitable  and  statutory  sepaeate  estate 

the  first  part  of  the  section — a  saving  of  the  previously  existing 
disability  so  far  as  it  covered  the  particular  class  of  contracts  spec- 
ified. The  general  intent  of  the^  act  is,..£io.^lainly  in  enlargement 
of  her  contractual  capacity  that  nothing  less  than  explicit  negative 
words  should  be  construed  as  narrowing  powers  admittedly  pos- 
sessed before  the  passage,  of  the  act. 

The  case  of  Patrick  v.  Smith,  165  Pa.  526,  30  Atl.  1044,  arose  un- 
der the  act  of  1887,  and  there  is  nothing  in  it  in  conflict  with  this 
view  of  the  act  of  1893.  A  wife  indorsed  her  husband's  note,  which 
plaintiffs  discounted  and  passed  to  her  credit,  and  she  immediately 
drew  a  check  to  her  husband's  order  for  the  whole  amount.  At 
maturity  the  husband  paid  part  of  the  note,  and  the  wife  gave 
her  note  for  the  balance,  which  plaintiffs  discounted,  and  she  again 
drew  her  check  to  her  husband's  order  for  the  proceeds.  On  this 
note  she  was  sued.  It  was  held  that  her  action  throughout  was 
for  the  accommodation  of  her  husband,  and  that  the  statute  could 
not  be  evaded  by  such  a  "transparent  device,"  to  which  the  plain- 
tiffs were  party.  Investment  Co.  v.  Roop,  132  Pa.  496,  19  Atl. 
278,  7  L.  R.  A.  211,  also  arose  under  the  act  of  1887,  and  the  strict 
construction  given  there  probably  had  much  influence  in  the  pas- 
sage of  the  act  of  1893,  which  enlarged  the  grant  of  contractual 
capacity  in  express  terms.     Judgment  affirmed. 


EVANS  V.  FAIRCLOTH-BYRD  MERCANTILE  CO. 
(Supreme  Court  of  Alabama,  1910.    165  Ala.  176,  51  South.  785.) 

Suit  by  the  Faircloth-Byrd  Mercantile  Company  against  R.  C. 
J.  Evans  and  others  to  foreclose  a  mortgage.  From  a  decree  in 
favor  of  plaintiff,  defendants  appeal. 

Simpson,  J.^^  The  bill  by  the  appellee  seeks  to  foreclose  a  mort- 
gage, executed  on  January  4,  1908,  by  appellant  M.  A.  Evans  and 
her  husband,  one  of  the  other  appellants,  and  also  prays  that  a 
mortgage  executed  by  said  respondents  M.  A.  and  R.  C.  J.  Evans, 
on  November  14,  1907,  to  the  Citizens'  Bank  of  Geneva,  another 
respondent,  be  declared  null  and  void  as  to  the  land  conveyed  by 
the  mortgage  to  complainant,  on  the  ground  that  said  M.  A.  Ev- 
ans, at  the  time  of  the  execution  of  said  mortgage,  was  a  married 
woman,  owning  said  property  as  a  part  of  her  separate  estate  un- 
der the  laws  of  Alabama,  and  the  same  was  given  as  security  for 
her  husband's  debt.  This  appeal  is  from  the  decree  overruling  the 
demurrer  to   the  bill. 

The  contention  of  the  appellant  is  that  no  one  can  raise  the  point 
of  the  invalidity  of  a  mortgage  by  a  married  woman,  on  the  ground 

11  Part  of  the  opinion  is  omitted. 


POWER   TO   CHARGE    STATUTORY    ESTATE    BY   CONTRACT  111 

Stated,  except  herself.  _Qur  statute  does  not  merely  confer  on  the 
wife  the  right  to  plead  her  coverture  to  such  conveyances,  but  pro;_ 
vides  that  "the  wife  shall  not,  directly,  or  indirectly,  become  the 
surety  for  the  husband."  Code  1907,  §  4497.  If  she  is  absolutely 
prohibited  from  making  such  an  instrument,  it  necessarily  follows 
that  any  attempt  to  do  soJs  not  merely  voidable,  but  void.  If  so, 
it  is  difficult  to  see  how  her  failure  to  take  any  steps  to  set  aside 
the  instrument,  or  even  her  ratification  of  it,  could  rise  above  the 
instrument  itself  and  impart  validity  to  it.  This  court  has  fre- 
quently declared  all  such  attempts  to  be  void.  They  were  so  de- 
clared, under  the  former  statute,  in  the  case  of  Lansden  v.  Bone, 
90  Ala.  446,  8  South.  65,  in  favor  of  the  heirs  of  the  wife;  the 
court  saying:  "To  require  them  to  show  in  their  bill  that  the 
debt  had  been  paid,  or  to  aver  a  willingness  to  pay  it,  would  be, 
in  efifect,  to  give  validity  to  a  mortgage  of  the  wife's  land,  executed 
to  secure  the  husband's  debt,  in  the  teeth  of  the  very  numerous 
decisions  of  this  court  *  *  *  to  the  efifect  that  such  instru- 
ments are  absolutely  void  as  conveyances  of  the  wife's  land."  In 
a  later  case,  when  it  was  first  before  this  court,  it  was  declared 
that  the  legal  title  passed  by  such  mortgage  (Richardson  v.  Ste- 
phens, 114  Ala.  238,  21  South.  949),  leaving  the  wife  only  an  eq- 
uity; but  on  the  second  appeal  that  expression  was  corrected,  and 
the  court  declared  distinctly  (calling  attention  to  the  wording  of 
the  former  and  present  statutes)  that  the  mortgage  was  absolutely 
void,  and  that  "the  mortgage,  being  void,  conferred  no  rights  upon 
the  mortgagee."  Richardson  v.  Stephens,  122  Ala.  306,  25  South. 
39     ♦    *    * 

Moreover,  the  execution  of  the  mortgage  to  the  complainant's  as- 
signor was  a  repudiation  of  the  previous  mortgage.  It  conveys  the 
property  with  covenants  of  warranty  as  to  the  title  and  against  in- 
cumbrances. The  complainant,  through  its  assignor  being  brought 
into  privity  with  said  M.  A.  Evans,  by  receiving  such  a  deed  from 
her,  is  entitled  to  all  the  interest  which  she  had  the  power  to  con- 
vey in  said  land,  and  for  the  protection  of  its  title  has  the  right 
to  raise  the  question  of  the  invalidity  of  the  previo,us  mortgage, 
and  to  have  the  same  declared  in  this  proceeding,  in  order  that, 
in  the  foreclosure  sale,  the  entire  land  may  be  subjected  to  its 
mortgage.  Story's  Eq.  PL  (10th  Ed.)  §  193,  and  note  "a,"  on  page 
194;  1  Jones  on  Mortgages  (6th  Ed.)  §  1441;  Wells,  Adm'r,  v. 
Amer.  Mortgage  Co.,  109  Ala.  431,  440,  20  South.  136;  Foster 
v.  Johnson,  44  Minn.  290,  292,  46  N.  W.  350;  First  Nat.  Bank  v. 
Salem  Capital  F.  M.  Co.  (C.  C.)  31  Fed.  580,  583.     *     *     * 

We  hold  that  the  mortgage  of  M.  A.  Evans  to  the  Citizens'  Bank, 
if  made  as  alleged,  as  surety  for  her  husband's  debt,  was  abso- 
lutely void,  and  conveyed  no  property,  title,  or  interest  to  said 
mortgagee,  and  the  junior  mortgagee  has  a  right  to  have  it  de- 


112       wife's  equitable  and  statutory  separate  estate 

Glared  void,  in  the  interest  of  his  title,  to  subject  the  land  to  the 
payment  of  his  mortgage,  free  of  any  prior  incumbrance. 
— There  was  no  error  in  overruling  the  demurrers  to  the  bill.    The 
decree  of  the~~coQrtis  affirmed/^ 


> 


lONA  SAVINGS  BANK  v.  BOYNTON. 
(Supreme  Court  of  New  Hampshire,  1897,    69  N.  H.  77.  39  Atl.  522.) 

Assumpsit  by  the  lona  Savings  Bank  against  Mary  E.  Boyn- 
ton  on  a  promissory  note.  The  note  was  signed  by  the  defendant 
at  the  request  of  her  husband,  who  told  her  he  needed  the  money. 
She  signed  the  note  to  help  her  husband  in  his  business,  and  au- 
thorized him  to  secure  its  discount  and  dispose  of  the  proceeds. 
The  defendant's  husband  applied  to  the  plaintiff  for  a  loan  of 
$5,000,  with  60  shares  of  the  capital  stock  of  the  Tilton  Hosiery 
Company  as  collateral.  It  declined  to  make  the  loan,  but  told  him 
that,  if  his  wife  desired  to  borrow  that  amount  with  the  same  se- 
curity, the  loan  would  be  made.  Shortly  afterwards  he  brought 
to  the  bank  the  note  in  suit,  with  the  collateral  above  named,  and 
received  the  amount  of  the  plaintifif.  He  deposited  the  avails  in 
the  Citizens'  National  Bank  to  the  credit  of  the  Tilton  Hosiery 
Company,  of  which  he  was  treasurer.  The  defendant  never  met  or 
had  any  talk  with  any  officer  of  the  bank  relative  to  the  loan. 
Upon  the  foregoing  facts  the  court  found  a  verdict  for  the  plaintiff 
for  the  amount  due  on  the  note,  and  the  defendant  excepted. 

Wallace,  J.  The  case  discloses  that  the  plaintiff  refused  to 
make  the  loan  to  the  husband,  but  did  make  it  to  the  wife  alone, 
upon  a  note  signed  by  her  to  which  the  husband  was  not  a  party, 
and  that  the  hiring  of  the  money  by  the  defendant  from  the  plain- 
tiff was  the  independent  contract  of  the  wife  as  principal,  and  not 
as  the  surety  or  guarantor  of  the  husband.  The  fact  that  she 
hired  the  money  with  the  intention  of  letting  her  husband  have  it 
to  assist  him  in  his  business,  and  did  so  let  him  have  it,  did  not 
impair  or  suspend  her  legal  capacity  to  make  the  contract,  or  make 
it  an  undertaking  for  him,  or  in  his  behalf,  within  the  meaning 
of  the  statute.  Parsons  v.  McLane,  64  N.  H.  478,  13  Atl.  588; 
Jones  V.  Holt,  64  N.  H.  546,  15  Atl.  214;  Wells  v.  Foster,  64  N. 
H.  585,  15  Atl.  216.     Exceptions  overruled.^^ 

12  Accord:  Allen  v.  Pierce,  163  Ala.  612,  50  South.  924,  136  Am,  St.  Rep, 
92  (1909).     See,  also,  Engler  v.  Acker,  106  Ind.  223,  6  N.  E,  342  (1886). 

13  The  statute  of  New  Hampshire  (Pub.  St.  1S91,  c.  176,  §  2)  provided  that 
contracts  of  a  married  woman  as  surety  or  guarantor  for  her  husband,  or 
an  undertaking  for  him  or  in  his  behalf,  should  not  be  binding  on  her. 

Accord:  Rood  v.  Wright,  124  Ga.  849.  53  S.  E.  390  (1906) ;  Rogers  v.  Shew- 
maker,  27  Ind.  App.  631,  60  N.  E.  462,  87  Am.  St,  Rep.  274  (1901). 


ANTENUi'TIAL  AND   POSTNUPTIAL   SETTLEMENTS  113 


ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS 
I.  Antenuptial  Settlements  ^ 


■      SPURLOCK  V.  BROWN. 
(Supreme  Court  of  Tennessee,  1892.    91  Tenn.  241,  18  S.  W.  868.) 

Suit  by  Margaret  M.  Spurlock  against  C.  P.  Brown  and  others  to 
set  aside  a  marriage  contract.  There  was  a  decree  for  complain- 
ant^ and  defendants  appeal. 

Dickinson,  Special  Judge.^  On  January  4,  1884,  complainant 
was  married  to  S.  B.  Spurlock.  On  December  24,  1883,  after  the 
parties  became  engaged,  a  marriage  contract  was  executed  by  com^ 
plainant,  who  was  then  Margaret  Mallon,  and  Spurlock,  by  which 
he  conveyed  to  her  an  estate  for  her  life  in  a  house  and  lot,  and 
she  agreed  as  follows:  "And  I,  the  said  Margaret  Mallon,  contract 
and  agree  with  the  said  S.  B.  Spurlock,  in  consideration  of  the 
above  conveyance,  upon  the  consummation  of  said  marriage,  to 
accept  the  above  as  my  portion  of  his  property,  either  real,  per- 
sonal, or  mixed,  moneys,  choses  in  action,  or  accounts,  and  I  do 
hereby  relinquish  all  my  rights  of  dower  or  homestead  in  any  real 
estate  said  Spurlock  now  has,  or  may  have ;  and,  in  case  said 
Spurlock  should  die  before  I  do,  I  hereby  relinquish  all  and  every 
interest  in  his  estate  I  may  or  would  be  entitled  to  in  consequence 
of  said  marriage." 

Complainant  had  been  in  business,  and  had  accumulated  about 
$3,700  which  at  the  time  this  contract  was  made,  and  at  the  time 
of  her  marriage,  was  loaned  to  Spurlock.  Nothing  was  said  by 
the  contracting  parties  in  regard  to  this  money,  nor  of  the  efifect 
of  the  marriage  upon  it.  On  March  13,  1890,  about  a  year  before 
his  death,  he  executed  and  gave  to  her  his  note  for  this  mone}^ 
with  some  interest,  aggregating  $3,735.50,  conditioned  that  it  should 
not  bear  interest  during  his  life.  Spurlock  died  January  23,  1891, 
leaving  no  descendants.  Respondents  are  his  next  of  kin.  His 
estate  at  his  death  was  worth,  net,  about  $100,000.  If  there  were 
no  marriage  contract,  complainant,  as  sole  distributee,  and  for 
dower,  would  succeed  to  an  estate  worth  about  $50,000.     *     *     * 

Spurlock,  at  the  time  of  the  marriage,  was  about  63.  Early  mis- 
fortune had  prematurely  impaired  his  health,  and  caused  him  to 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  ReL  (3d  Ed.) 

2  Part  of  the  opinion  is  omitted, 

COOLKY  P.&  D.Rel.— 8 


114  ANTENUPTIAL  AND   POSTNUPTIAL   SETTLEMENTS 

withdraw  from  social  life.  He  was  a  wholesale  grocery  merchant, 
and  Mrs.  Mallon  was  his  customer.  He  knew  her  for  years  be- 
fore her  marriage,  was  familiar  with  her  surroundings,  and  was 
her  business  adviser.  It  is  in  proof  that  he  did  not  expect  any 
children  from  the  union.  At  the  time  the  contract  was  made  he 
was  largely  in  debt,  but  his  estate  then  was  worth,  net,  fully  as 
much  as  it  was  at  his  death. 

There  is  an  effort  to  show  that  complainant  contrived  the  mar- 
riage, but  the  proof  does  not  sustain  it.  *  *  *  Her  origin  and 
antecedents  were  humble;  but  she,  so  far  as  this  record  shows, 
had  achieved  a  competency  for  herself  by  her  own  efforts,  and  had 
maintained  a  reputable  character.  His  antecedents  and  family  po- 
sition were  good;  but,  constrained  by  a  misfortune,  he  had  ban- 
ished himself  from  the  social  orbit  in  which  he  might  have  moved. 
His  life  was  lonely,  his  health  impaired,  and  he  was  approaching 
inevitable  decrepitude.  Leaving  out  all  consideration  of  pecuniary 
benefits,  there  certainly  was  no  advantage  in  his  status  over  hers; 
nothing  to  make  marriage  a  condescension  on  his  part.     *     ♦     * 

The  proof  clearly  shows  that  all  question  of  the  money  he  had 
borrowed  of  her  was,  on  making  the  contract,  passed  over  sub 
silentio.  She  surrendered  all  prospective  marital  rights  in  his  es- 
tate, then  worth,  net,  $100,000,  and  received  a  life-estate,  in  realty, 
which  had  cost  him,  two  months  prior  to  the  marriage,  but  $5,000, 
and  on  which  he  had  spent  in  improvements  about  $1,000.  She  in- 
sists that  a  marriage  contract,  being  cognizable  only  in  a  court 
of  equity,  will  not  be  enforced  unless  the  provision  made  for  her 
be  fair,  reasonable,  just,  and  equitable.  It  is  contended  for  defend- 
ants that  marriage  alone  is  a  sufficient  consideration  to  sustain  any 
antenuptial  agreement  the  parties  may  make  respecting  present 
or  future  rights  in  the  property  of  each  other. 

The  authorities  are  much  in  conflict.  One  class  of  cases  view 
the  interposition  of  the  contract  as  merely  an  equitable  bar,  which 
is  held  conclusive,  provided  it  be  entered  into  freely  and  under- 
standingly.  The  other  class  treat  the  reliance  on  it  as  an  invoca- 
tion to  the  court  for  its  active  interposition  to  enforce  it  specific- 
ally, and  inasmuch  as  specific  performance  is  not  an  absolute  right, 
but  is  always  within  the  discretion  of  the  court,  they  proceed  to 
apply  to  the  contract  the  usual  tests  to  determine  whether,  under 
all  the  circumstances,  the  agreement  is  fair,  just,  and  equitable, 
and  especially  whether  the  consideration  be  adequate.  The  meth- 
ods of  treating  the  contract  would  not  produce  such  conflicting 
conclusions  were  it  not  for  the  high  estimate  put  by  one  line  of 
authorities  upon  marriage  as  a  consideration,  and  its  entire  preter- 
mission by  the  opposing  line,  which  seem  to  look  only  to  the  pe- 
cuniary features  of  the  transaction. 

In  Naill  v.  Maurer,  25  Md.  538,  and  Forwood  v.  Forwood,  86 
Ky.  114,  5  S.  W.  361,  marriage  alone  is  held  to  be  a  sufficient  con- 


ANTENUPTIAL   SETTLEMENTS  '  115 

sideration  to  sustain  an  antenuptial  settlement.  In  the  latter  case 
the  court  says :  "The  consideration  of  marriage  is  not  only  re- 
garded as  sufficient  to  uphold  an  antenuptial  contract,  but  the  con- 
sideration may  be  regarded  by  the  woman  as  of  inestimable  value 
to  her — a  value  that  would  by  far  outweigh  her  property  rights  in 
the  estate  of  her  intended  husband."  The  same  rule,  though  not 
necessarily  involved  in  the  decisions,  and  therefore  not  authorita- 
tively adopted,  is  approved  in  the  following  cases:  McNutt  v.  Mc- 
Nutt,  116  Ind.  545,  19  N.  E.  115,  2  L.  R.  A.  372;  Mann  v.  Mann, 
53  Vt.  54;  Hafer  v.  Hafer,  33  Kan.  460,  6  Pac.  537;  Wentworth 
V.  Wentworth,  69  Me.  247;  Brooks  v.  Austin,  95  N.  C.  476.  The 
case  of  Peet  v.  Peet,  81  Iowa,  172,  46  N.  W.  1051,  cited  to  sustain 
this  view,  is  not  in  point,  and  by  implication  rests  on  the  opposing 
doctrine.  The  following  authorities  hold  that  the  contract  to  be 
enforced  must  secure  a  provision  for  the  wife  not  unreasonably 
disproportionate  to  the  means  of  the  intended  husband:  2  Scrib. 
Dower  (2d  Ed.)  424;  Gould  v.  Womack,  2  Ala.  83;  Woerner, 
Adm'n,  1,  264;  Kline's  Estate,  64  Pa.  122;  Ruth  Bierer's  Appeal, 
92  Pa.  265;  Pierce  v.  Pierce,  71  N.  Y.  154,  27  Am.  Rep.  22;  Tar- 
bell  V.  Tarbell,  10  Allen  (Mass.)  278;  Shea's  Appeal,  121  Pa.  302, 
15  Atl.  629,  1  L.  R.  A.  422;  Stilley  v.  Folger,  14  Ohio,  647;  Smith's 
Appeal,  115  Pa.  319,  8  Atl.  582;  Neeley's  Appeal,  124  Pa.  406,  16 
Atl.  883,  10  Am.  St.  Rep.  594;   Ludwig's  Appeal,  101  Pa.  535. 

The  common  law  cherished  nothing  more  than  the  right  of  dow- 
er. The  wife  was  dowable  in  one-third  of  the  lands  seised  and  pos- 
sessed by  the  husband  during  coverture.  And  yet  this  right  could 
be  effectually  barred  by  a  jointure  in  lieu  of  dower  made  before 
marriage  with  her  consent,  without  regard  to  the  adequacy  or 
inadequacy  of  the  provision.  In  this  state  her  right  of  dower  only 
attaches  to  the  land  owned  by  her  husband  at  his  death.  He  may 
Xexcepting  homestead)  sell,  without  her  consent,  every  foot  of 
land,  and  squander  the  proceeds,  and  defeat  her  dower  absolutely. 
It  is  subject  to  every  vicissitude  of  business  venture,  and  is  a  most 
precarious  expectancy.  She  may  not  survive  him,  and,  if  she  do, 
the  period  of  her  enjoyment  may  come  when  its  value,  measured  by 
her  prospect  of  life,  may  be  reduced  to  a  minimum.  There  is  no 
standard  by  which  a  court  can,  as  of  the  time  an  antenuptial  set- 
tlement is  made,  value  such  a  future  right.  The  same  infirmities 
and  uncertainties,  though  in  an  increased  ratio,  apply  to  her  ex- 
pectancy as  distributee  of  personalty;  the  additional  one  of  chil- 
dren to  share  being,  in  most  cases,  probable.  If  a  court  shall  take 
the  value  of  his  estate  when  the  contract  is  made  as  a  criterion, 
it  will  happen  often  that  the  provision  assumed  on  this  basis  to 
be  just  will  far  exceed  what  she  would  have  gotten  after  a  life's 
shipwreck  in  the  absence  of  a  contract.  On  the  other  hand,  the 
conditions  may  be  reversed.     The  problem  is  to  estimate  what  is 


116  ANTENUPTIAL   AND    POSTNUPTIAL   SETTLEMENTS 

a  reasonable  consideration  for  surrendering  a  future  estate  involved 
in  so  much  doubt  and  hazard. 

The  rule  contended  for  would  be  variable  in  its  results  according 
to  the  ideas  of  different  judges  as  to  what  provision  would  be  rea- 
sonable. It  is  plain  that,  under  this  rule,  no  such  settlement  would, 
in  any  sense,  have  any  sanctity  as  a  contract.  It  could  have  no 
fixed  character  until  the  judges  before  whom  it  finally  came  had 
decided  whether  it  be  reasonable.  The  fullest  disclosures  of  prop- 
erty might  be  made,  the  advice  of  friends  and  lawyers  be  invoked, 
all  solemnities  of  execution  and  acknowledgment  be  observed,  and 
yet  it  would  be  a  mere  problem  as  to  what  would  be  reasonable, 
projected  into  the  future,  to  be  decided,  perhaps,  by  an  unborn 
judge  according  to  his  peculiar  notions,  not  confined  by  definite 
rules,  and  formed  at  a  different  period  of  time,  under  the  influence 
of  changed  conditions  of  society. 

This  rule  leaves  out  of  view  entirely  marriage  as  a  considera- 
tion. Where  a  settlement  made  by  the  husband  on  the  wife,  with- 
out fraud  on  her  part,  and  in  consideration  of  marriage,  has  been 
attacked  by  creditors,  it  has  been  uniformly  sustained,  and  all  the 
authorities  concur  in  saying  that  marriage  is  the  highest  consid- 
eration for  such  a  settlement.  It  is  a  sufficient  consideration  from 
the  woman  to  enable  her  to  take  all  of  her  intended  husband's 
estate  from  his  creditors.  In  our  opinion,  there  is  no  sound  rea- 
son why  she  may  not,  if  of  age  and  acting  freely  and  understand- 
ingly,  agree,  in  consideration  of  the  marriage  alone,  to  give  up  the 
pecuniary  benefits  that  would  come  from  it.  The  value  of  the  mar- 
riage can  be  estimated  by  no  one  as  well  as  herself,  and  if  it  be 
accepted  by  her  freely,  as  an  equivalent  for  monetary  sacrifices,  the 
courts  should  not  interfere  after  she  has  obtained  the  marriage  she 
contracted  for,  no  matter  how  great  such  sacrifices  may  be,  pro- 
vided she  was  not  misled. 

In  this  case  the  contract  recites  that  a  marriage  is  to  be  solem- 
nized, and  then  proceeds  as  follows:  "I,  S.  B.  Spurlock,  in  consid- 
eration of  the  consummation  of  said  marriage,  do  hereby  and  herein 
give,"  etc.  When  the  portion  binding  her  is  reached  it  says :  "And 
I,  the  said  Margaret  Mallon,  contract  and  agree  with  the  said  S. 
B.  Spurlock,  in  consideration  of  the  said  conveyance,"  etc.  Mar- 
riage is  not  made  a  consideration  for  her  agreement.  It  need  not 
be  specifically  mentioned  as  a  consideration.  Naill  v.  Maurer,  25 
Md.  538.  But  here  the  terms  of  the  instrument  confine  the  con- 
sideration expressly  to  the  conveyance  made  to  her.  Being  so 
exactly  limited  in  a  contract  drawn  by  his  lawyer,  it  may  well  be 
held  to  have  been  entirely  pecuniary.  When  this  contract  was 
made,  the  engagement  to  marry  had  been  entered  into.  By  the 
engagement  she  acquired  a  valuable  right  which,  in  case  of  a  breach 
of  contract,  could  have  been  enforced,  and  measured  with  reference 
to  Spurlock's  estate.     She  could  have  refused  to  sign  the  contract 


ANTENUPTIAL   SETTLEMENTS  117 

without  impairing  her  right  to  have  the  marriage  consummated, 
or  to  enforce  indemnity  for  a  refusal. 

Spurlock  must  have  known  that  her  marital  rights,  if  not  cut 
off,  would  in  all  probability  be  very  valuable.  Defendants  prove 
that  he  took  his  own  lawyer  to  her  to  explain  the  instrument.  The 
relations  of  the  parties  had  become  confidential.  He  voluntarily 
assumed  the  office  of  having  her  instructed  in  respect  of  the  agree- 
ment, and  introduced  Mr.  Stubblefield  to  her  for  that  purpose. 
Mr.  Stubblefield  testifies  that  he  said  nothing  to  her  in  regard  to 
the  effect  of  the  marriage  upon  her  rights  as  to  her  own  money, 
either  in  the  absence  of  a  contract  or  under  the  contract  proposed: 
He  says  that,  in  his  opinion,  the  money,  if  repaid  to  her  before 
marriage,  would  have  remained  her  separate  estate.  If  he  enter- 
tained this  erroneous  idea,  it  is  not  reasonable  to  suppose  that  she 
knew  that  she  was  surrendering  her  money.  It  does  not  appear 
that  the  question  of  her  money  was  in  any  way  considered,  al- 
though her  rights  in  it  were  to  be  affected  by  the  marriage.  Stub- 
blefield shows  that  he  did  not  contemplate  it.  It  is  evident,  from 
his  testimony,  that  he  did  not  advise  her  as  to  the  rights  she  had 
acquired  by  the  engagement.  She  had  a  right  to  expect  a  fuller 
exposition  of  her  legal  status  in  respect  of  the  purely  money  bar- 
gain she  was  making  than  she  received. 

^It  is  manjfest  that  she  was  not  put  in  a  position  to  deal  intelli- 
gently'wrrh  her  rights.    The  result  justifies  this  conclusion.     Spur- 
~\oxik;'hj  the  marriage,  acquired  the  absolute  right  to  the  $3,700 
he  owed  her.     She  gave  up  all  her  rights  in  his  estate.     She  got 
a  life-estate  in  a  house  and  lot,  which,  with  improvements,  had 
just  cost  him  about  $6,000.     She  was  40  years  of  age.     The  life- 
estate  could  not  have  exceeded,  if  it  equaled,  in  value  the  amount  of 
money  she  surrendered  by  the  marriage.    She  practically,  then,  un- 
der the  marriage  and  the  contract,  got  nothing,  and  so  surrendered 
for  nothing,  and  not  in  consideration  of  the  marriage,  a  legal  right 
acquired  by  the  engagement,  which  Spurlock  was  bound  to  know 
had  great  prospective  value.     This  is  not  a  case  simply  of  igno- 
rance or  mistake  of  law  on  her  part.     This,  standing  alone,  can- 
not be  relieved  against.     Other  elements  exist  in  the  transaction. 
Those  in  whom  she  had  confidence,  upon  whom  she  had  a  right 
to  rely,  procured  from  her,  (though  certainly,  so  far  as  Stubble- 
field is  concerned,  not  with  wrong  intent,)   for  an  expressed  pe- 
cuniary consideration,  a  contract  most  detrimental  to  her;    and, 
though  voluntarily  assuming  to  instruct  her,  they  failed  to  advise 
her  as  to  her  legal  rights,  and  as  to  the  real  consideration  she  was 
getting  under  the  combined  effects  of  the  contract  and  the  mar- 
riage.    *     *     * 

Complainant  was  not  dealing  at  arms-length,  nor  under  the  ad- 
vice of  her  own  counsel.  Assuming  to  instruct,  they  should  have 
done  so  fully,  and  she  had  a  right  to  presume  that  such  was  the 


118  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS 

case.    .A  failure  to  so  advise,  where  such  close  confidence  is  re- 
posed, whether  purposely  or  through  ignorance  or  misapprehen-^ 
sion,  is  equivalent  to  positive  misadvice. 

There  is  another  important  fact,  which  has  great  weight  and 
must  be  considered  as  one  of  the  controlling  elements  in  the  trans- 
action. She  testifies  that  Spurlock  told  her  that  he  was  heavily  in 
debt,  and  made  the  impression  on  her  that  he  was  not  worth  much. 
Other  witnesses  testified  that  he  frequently  spoke  of  being  op- 
pressed by  his  large  indebtedness,  and  thus  she  is  corroborated. 
Thus  the  impression  produced  by  him  was  calculated  to  influence_ 
her  to  yield,  as  of  little  value  and  for  an  inadequate  consideration, 
what,  upon  full  information,  would  have  been  apparently  of  great 
value.  If  the  contract  was  freely  entered  into  in  consideration  of 
marriage,  the  disproportion  between  the  estate  and  the  settlement 
is  no  ground  for  presuming  that  proper  information  in  regard  to 
the  value  of  the  husband's  estate  was  not  possessed.  In  such  a 
case  there  is  no  necessity  for  a  disclosure. 

The  case  is  different  where  the  contract  relates  in  terms  to  a 
money  bargain,  and  it  affirmatively  appears  that  misleading  im- 
pressions were  made,  and  that  the  opposite  party  in  interest,  who 
undertook  to  advise  her  of  her  rights,  and  upon  whom  she,  from 
the  confidential  relations  existing  between  them,  relied  on,  failed 
to  give  her  such  instructions  as  would  fairly  put  her  in  a  position 
to  judge  of  the  rights  which  she  was  yielding;  and  when  these 
acts  concur,  and  the  contract  made  is  greatly  to  her  disadvantage, 
a  court  of  equity  will  not  give  it  effect.  That  she  may^  have  en- 
tered into  the  contract,  even  with  a  full  understanding,  is  not  the 
question.  The  court  cannot  speculate  about  this.  We  hold_tha±r— 
under  the  facts  stated,  it  was  not  fairly  obtained,  and  therefore  we 
'cannot  sustain  it  as  an  equitable  bar  to  her  rights. 

It  can  make  no  difference  that  Spurlock  subsequently  gave  her 
his  note  for  this  money.  This  was,  in  law,  nothing  but  a  gratuity. 
The  money  became  his  absolutely  by  the  marriage,  no  matter  what 
he  may  have  thought  about  it.  It  was  in  no  way  secured  to  he"r, 
and  was  liable  for  his  debts.  He  had  it  entirely  in  his  power,  to 
dispose  of  it  in  any  way  he  might  choose.  He  could  not,  by  giv- 
ing it  to  her  subsequently,  thus  putting  her  in  as  good  a  position 
as  if  it  had  been  reserved  or  voluntarily  yielded  by  the  contract, 
destroy  her  rights  in  his  estate,  which  had  not  by  the  agreement 
made,  under  the  facts  as  they  existed,  been  impaired  beyond  eq- 
uitable remedy.  No  subsequent  bounty,  be  it  ever  so  munificent, 
could  cure  the  infirmities  of  such  a  transaction,  and  convert  it  into^ 
a  binding  agreement.    The  decree  of  the  chancellor  is  affirmed. 


POSTNUPTIAL  SETTLEMENTS  119 


II.  Postnuptial  Settlements  ' 


CLOW  V.  BROWN. 

(Appellate  Court  of  Indiana,  Division  No.  1,  1904.     37  Ind.  App.  172,  72 

N.  E.  534.) 

Action  by  James  B.  Clow  and  others  against  John  S.  Brown  and 
others.  From  a  decree  in  favor  of  plaintiffs  for  less  than  the  re- 
lief demanded,  they  appeal.    Transferred  from  the  Supreme  Court. 

Bi^CK,  J.*  The  appellants  brought  suit  against  the  appellees, 
John  S.  Brown,  Mary  V.  Brown,  and  Fannie  B.  Coddington,  upon 
a  judgment  rendered  by  the  circuit  court  of  Clinton  county  Jan- 
uary 9,  1900,  in  favor  of  the  appellants  against  the  appellee  John 
S.  Brown,  and  to  set  aside,  as  fraudulent  as  against  his  creditors, 
certain  conveyances  of  real  estate  situated  in  Montgomery  county 
to  the  other  appellees,  and  a  mortgage  of  real  estate  in  that  county 
to  the  appellee  Mary  V.  Brown ;  such  conveyances  and  mortgage 
having  been  executed  by  the  appellee  John  S.  Brown  September 
9,  1899.     *     *     * 

John  S.  Brown  and  Mary  V.  Brown  (then  Mary  Vance),  in  con- 
templation of  their  marriage,  entered  into  a  written  contract,  signed 

and  sealed  by  them,  respectively,  in  duplicate,  December  17,  1886, 

tlie  body  of  which  contract  was  as  follows:  "This  article  of  agree- 
ment by  and  between  John  S.  Brown  and  Mary  V.  Vance,  both 
of  the  city  of  Crawfordsville,  State  of  Indiana,  witnesseth,  that  the 
said  parties  now  having  in  contemplation  a  marriage  with  each 
other,  do  hereby  agree  as  follows :  Said  parties  do  hereby  mutu- 
ally agree  to  renounce  and  waive,  and  they  do  hereby  renounce 
and  waive,  any  and  all  rights  of  inheritance  each  may  have  under 
the  law  of  the  State  of  Indiana  by  reason  of  said  proposed  mar- 
riage, to  the  property  of  the  other;  and  it  is  further  agreed  that 
in  case  said  Mary  D.  Vance  shall  survive  said  John  S.  Brown,  that 
upon  his  death  she  shall  be  paid  the  sum  of  ten  thousand  dollars 
in  cash  out  of  the  estate  of  said  Brown,  this  sum  to  be  paid  in 
consideration  of  her  waiver  in  the  estate  of  said  Brown  as  above 
set  forth." 

At  the  time  of  the  making  of  this  contract,  Mary  D.  Vance  was 
in  good  health  and  in  the  fortieth  year  of  her  age,  and  John  S. 
Brown  was  in  good  health  and  was  63  years  old.  He  was  then  in 
prosperous  circumstances,  and  was  worth  from  forty  to  sixty  thou- 

»  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§§  88-92. 
*  Part  of  the  opinion  relating  to  other  conveyances  is  omitted. 


120  ANTENUPTIAL   AND   POSTNUPTIAL   SETTLEMENTS 

sand  dollars.  He  was  the  owner  of  real  estate  of  the  probable 
value  of  $30,000,  and  the  court  found  that  the  contract  was  a  just 
and  reasonable  provision  for  his  wife  in  his  circumstances  at  that 
time.  Afterward,  pursuant  to  the  contract,  the  parties  thereto 
were  duly  married  December  21,  1886. 

Subsequent  to  this  marriage,  and  long  prior  to  September  9, 
1899,  John  S.  Brown  had  incurred  a  liability  to  the  appellants  for 
a  statutory  penalty  growing  out  of  his  relations  with  the  Craw- 
fordsville  Waterworks  Company,  as  a  director  thereof,  and  he  and 
others  had  been  sued  by  the  appellants  on  account  of  such  lia- 
bility, and  the  action  had  been  pending  in  the  courts  of  Montgom- 
ery and  Clinton  counties  since  August,  1889;  and  the  proceedings 
finally  culminated  in  a  judgment  duly  rendered  by  the  Clinton 
circuit  court  against  John  S.  Brown  and  the  estate  of  Robert  B.  F. 
Pierce  for  $6,203.82,  January  9,  1900.  At  that  time  the  estate  of 
Pierce  was  insolvent,  and  at  no  time  has  it  had  assets  out  of  which 
any  part  of  the  judgment  could  be  collected,  which  judgment  is 
still  in  full  force  and  wholly  unpaid.     *     *     * 

John  S.  Brown,  September  9,  1899,  executed  to  his  wife,  the 
appellee  Mary  V.  Brown,  a  deed  of  conveyance  for  lots  17  and  20 
and  Tract  B,  above  mentioned,  and  a  mortgage  on  the  eastern  and 
greater  portion,  described,  of  Tract  A.  This  mortgage  was  given 
to  indemnify  the  mortgagee  from  the  payment  of  a  balance  of 
$155.30  to  a  bank  named,  and  secured  by  mortgage  on  the  property 
that  day  conveyed  by  Brown  to  his  wife,  and  also  to  secure  and 
indemnify  her  against  the  payment  of  a  debt  of  $1,500,  and  inter- 
est thereon,  secured  by  mortgage  in  favor  of  one  Thomas  on  the 
property  so  conveyed  to  her.  The  conveyance  and  mortgage  were 
so  executed  by  John  S.  Brown,  and  were  accepted  by  Mary  V. 
Brown  "in  lieu  and  in  satisfaction  of"  the  antenuptial  contract  above 
mentioned,  and  were  so  executed  by  John  S.  Brown  in  view  of 
the  fact  of  his  insolvency,  and  with  full  knowledge  of  both  £a.rties 
thereto  of  his  financial  condition  at  the  time.     *     *     * 

There  is  somewhat  greater  difficulty  in  determining  the  ques- 
tion in  relation  to  the  postnuptial  conveyance  and  mortgage  from 
Brown  to  his  wife.  It  is  contended  on  behalf  of  the  appellants  that 
the  antenuptial  contract  between  them  was  so  framed  that  it  did 
not  make  Brown  the  debtor  of  his  wife,  and  that  they  could  not, 
as  against  the  appellants,  make  a  postnuptial  settlement  of  that 
contract,  except  in  accordance  with  the  terms  of  the  contract  it- 
self. If  it  were  necessary  to  refer  to  the  marriage  itself  as  the 
consideration  for  the  postnuptial  conveyance  and  mortgage,  it  is 
plain  that  the  conveyance  and  mortgage  must  be  regarded  as  vol- 
untary. The  irrevocable  marriage  union  could  not  constitute  a 
valuable  consideration  for  a  subsequent  agreement  of  the  parties 
thereto.  But  if  the  execution  of  the  conveyance  and  mortgage 
may  be  regarded  as  having  a  valuable  consideration  other  than  the 


POSTNUPTIAL   SETTLEMENTS  121 

marriage,  and  as  being  a  preference  of  a  pre-existing  debt  of  the 
husband  to  the  wife,  then,  under  the  facts  shown  by  the  court's 
finding,  the  conveyance  and  mortgage  must  be  upheld  against  the 
attack  of  the  husband's  creditors. 

In  Reade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  481,  487,  8  Am. 
Dec.  520,  it  was  said  :  "The  settlement  was  a  voluntary  one.  There 
was  no  portion  advanced  by  or  on  behalf  of  the  wife,  nor  was  it 
founded  on  any  antenuptial  contract  duly  ascertained,  or  on  any 
other  valuable  consideration."  The  chancellor  thus  indicates  what 
is  necessary  to  support  a  postnuptial  settlement.  A  postnuptial 
settlement,  if  not  shown  to  be  made  pursuant  to  and  in  compliance 
with  a  valid  antenuptial  agreement  therefor,  must,  as  against  exist- 
ing creditors,  be  regarded  as  voluntary,  unless  founded  upon  a  val- 
uable consideration  other  than  the  marriage.  See  Reade  v.  Living- 
ston, supra;    Lavender  v.  Blackstone,  2  Lev.  146. 

In  Saunders  v.  Ferrill,  23  N.  C.  97,  102,  it  was  said:  "Valid 
antenuptial  contracts  will  undoubtedly  support  a  settlement  after 
Inarriage  in  conformity  to  them.  There  are  both  a  moral  and 
an  equitable  obligation,  which  render  the  articles  a  good  considera- 
tion for  the  settlement.  But  without  such  articles  a  postnuptial 
settlement  is  voluntary  and  void  under  St.  13  EHz.  (see  1  Rev. 
St.  c.  50,  §  1),  as  has  long  been  settled.  So  it  necessarily  must 
be  when  by  the  settlement  the  husband  secures  to  the  wife  or  issue 
of  the  marriage  more  than  by  the  articles  he  engaged."  See  Ma- 
guire  v.  Nicholson,  Beatty,  592. 

In  Magniac  v.  Thompson,  7  Pet.  348,  392,  8  L.  Ed.  709,  it  was 
said  by  Story,  J.:  "Nothing  can  be  clearer,  both  upon  principle 
and  authority,  than  the  doctrine  that  to  make  an  antenuptial  set- 
tlement void,  as  a  fraud  upon  creditors,  it  is  necessary  that  both 
parties  should  concur  in,  or  have  cognizance  of,  the  intended  fraud. 
*  *  *  Marriage,  in  contemplation  of  law,  is  not  only  a  val- 
uable consideration  to  support  such  a  settlement,  but  is  a  consid- 
eration of  the  highest  value,  and,  from  motives  of  the  soundest 
policy,  is  upheld  with  a  steady  resolution.  The  husband  and  wife, 
parties  to  such  a  contract,  are  therefore  deemed,  in  the  highest 
sense,  purchasers  for  a  valuable  consideration."  A  wife  may,  un- 
der such  articles,  become  a  creditor  of  her  husband,  upon  his  un- 
dertaking therein  to  make  an  investment  of  money  in  her  behalf, 
and  a  delivery  of  notes  in  part  performance  of  the  articles  was 
upheld  against  other  creditors  of  the  husband.     Id. 

In  Read  v.  Worthington,  9  Bosw.  (N.  Y.)  617,  628,  it  was  said 
that  "there  is  no  principle  which  puts  a  contingent  liability  beyond 
the  possibility  of  being  protected." 

In  Rider  v.  Kidder,  10  Vesey,  Jr.  (Sumner)  360,  under  a  cove- 
nant, upon  marriage,  by  the  husband,  with  the  trustees,  in  case 
his  wife  should  survive  him,  to  pay  her  a  sum  of  money,  it  was 
held  that  she  was  a  creditor,  within  the  statute  of  Elizabeth  against 


122  ANTENUPTIAL   AND   POSTNUPTIAL    SETTLBMENTS 

fraudulent  conveyances,  as  against  a  fraudulent  conveyance  made 
by  him  to  a  third  person,  in  a  suit  to  set  aside  the  fraudulent  con- 
veyance, brought  after  his  death  by  his  widow  as  executrix. 

In  Blow  V.  Maynard,  2  Leigh  (Va.)  29,  Carr,  J.,  gave  the  sub- 
ject of  postnuptial  settlements  an  examination,  citing  a  number  of 
cases,  and  said  that  the  giving  up  an  interest  in  the  settlor's  estate 
will  support  such  a  settlement.  "The  cases,"  he  said,  "also  show 
that  not  only  the  relinquishment  by  the  wife  of  a  certain  and  fixed 
interest  in  her  husband's  estate,  but  also  of  a  contingent  interest, 
will  support  a  postnuptial  settlement,  where  there  is  no  badge  of 
fraud,  as  the  giving  up  her  interest  in  a  bond,  though  contingent. 
1  Eq.  Ca.  Abr.  19;  2  Ves.  16.  So,  likewise  releasing  her  jointure 
or  dower.     Pre.  in  Cha.  113;   2  Lev.  70,  147;   2  Vern.  220." 

In  Cottle  V.  Fripp,  2  Vernon,  220,  a  husband  had  settled  a  jointure 
issuing  out  of  certain  real  estate  on  his  wife.  Later  the  wife  joined 
the  husband  in  a  sale  of  that  real  estate,  "and  in  consideration 
thereof,  and,  in  lieu  of  her  jointure,"  the  husband  gave  a  certain 
bond  in  her  favor,  which  was  upheld  as  against  a  subsequent  cred- 
itor of  the  husband. 

In  Scott  V.  Bell,  2  Lev.  70,  a  wife  joined  in  an  alienation  of  her 
jointure,  and  had  another  made  the  same  day.  It  was  held  that 
the  new  settlement  was  not  voluntary.  It  was  said  by  Hale  and  the 
court  that  the  second  settlement  was  not  void  as  to  a  subsequent 
lease  made  by  the  husband,  "for,  the  old  settlement  being  destroyed 
and  the  new  one  made  the  same  day,  an  agreement  by  him  to  make 
the  new  settlement,  in  consideration  the  wife  would  pass  the  fine 
and  bar  the  old  settlement,  shall  be  intended,  and  the  considera- 
tion shall  extend  to  all  the  uses  of  the  new  settlement,  for  it  shall 
not  be  presumed  that  the  wife  would  have  parted  with  her  estate 
by  the  old  settlement  unless  the  baron  would  make  the  same  provi- 
sion for  her  and  her  issue  by  the  new."  In  that  case  the  lands  in 
the  new  settlement  were  said  to  be  almost  of  double  value  to  those 
in  the  first  settlement,  yet  by  direction  of  the  court  the  jury  gave 
their  verdict  sustaining  the  new  settlement. 

In  Ward  v.  Shallet,  2  Ves.  16,  a  wife  had  a  contingent  interest 
under  a  bond  given  by  her  husband  on  the  marriage.  She  agreed 
to  part  with  that  interest  upon  her  husband  making  another  set- 
tlement upon  her.  It  was  said  by  the  Lord  Chancellor  that  the 
parting  with  her  contingent  interest  under  the  bond  was  a  clear 
consideration,  that  a  contingent  interest  may  be  a  consideration  as 
well  as  a  certain  interest,  and  that  the  wife,  insisting  on  the  bene- 
fit of  it,  was  barred  from  any  claim  under  the  bond. 

By  the  terms  of  the  antenuptial  contract.  Brown  and  his  prospec- 
tive wife,  in  contemplation  of  their  marriage,  renounced  and  waived 
all  the  rights  of  inheritance  of  either  of  them  under  the  law  by 
reason  of  the  marriage,  and  agreed  that,  if  the  wife  should  survive 
the  husband,  she  upon  his  death  should  be  paid  $10,000  in  cash 


POSTNUPTIAL   SETTLEMENTS  123 

out  of  his  estate  in  consideration  of  her  said  waiver  in  his  estate. 
The  conveyance  and  mortgage  were  executed  by  the  husband  and 
accepted  by  the  wife  "in  lieu  and  in  satisfaction  of  the  antenuptial 
contract."  They  were  not  executed  pursuant  to  the  antenuptial 
contract,  or  by  way  of  carrying  into  effect  any  contract  made  in 
consideration  of  the  marriage;  nor  can  the  marriage  be  regarded 
as  entering  into  the  consideration  for  the  conveyance  and  mortgage. 

Under  our  modern  statutory  system,  the  husband  and  wife  could 
contract  with  each  other  without  the  intervention  of  a  trustee.  By 
the  postnuptial  settlement,  if  valid,  the  antenuptial  contract  ^  was 
abrogated  in  consideration  of  the  new  settlement,  and  all  the  rights 
and  obligations  of  the  parties,  respectively,  created  by  the  earlier 
contract,  were  set  aside.  The  husband  was  freed  from  any  ob- 
ligation under  that  contract  for  the  payment  of  money  to  the  wife 
out  of  his  estate,  and  was  restored  to  any  rights  in  her  property  re- 
nounced and  waived  thereunder,  while  her  renunciation  and  waiver 
therein  of  rights  of  inheritance  by  virtue  of  the  marriage  were 
also  abrogated,  for  the  new  settlement  was  in  lieu  of  the  old  con- 
tract and  in  satisfaction  of  it,  and  not  merely  of  the  contingent 
promise  therein. 

It  does  not  appear  what  property,  if  any,  the  wife  owned,  other 
than  that  obtained  in  the  postnuptial  settlement.  The  property 
which  she  thus  acquired,  and  any  other  real  estate  owned  by  her, 
or  of  which  she  might  afterward  become  seised,  would  be  held  by 
her  subject  to  the  rights  of  a  husband  in  the  property  of  his  wife 
under  the  law.  If  any  advantage  of  value  was  lost  by  the  wife  or 
gained  by  the  husband  through  the  abrogation  of  the  old  contract, 
it  cannot  be  said  that  there  was  not  a  valuable  consideration  for 
the  new  contract.  While  a  contingent  indebtedness,  or  obligation 
toTpay  upon  a  contingency,  is  not  for  some  purposes  to  be  regarded 
as  a  present  debt,  yet,  under  the  authorities,  such  a  contingent  Ha- 
bility  as  is  here  involved  may  be  preferred  by  the  debtor  in  failing 
circumstances.  We  have  no  means  of  determining  that  the  con- 
sideration for  the  conveyance  and  mortgage  was  so  grossly  inade- 
quate as  to  invalidate  them  at  the  suit  of  creditors. 

We  do  not  find  any  substantial  ground  of  complaint  on  the  part 
of  the  appellants  against  the  conclusions  of  law.  Judgment  af- 
firmed. 


124  SEPARATION  AND  DIVOECH 


SEPARATION  AND  DIVORCE 
I.  Agreements  of  Separation  * 


HIETT  V.  HIETT. 

(Supreme  Court  of  Nebraska,  1905.    74  Neb.  96,  103  N.  W.  1051.) 

Commissioners'  opinion.  Action  by  Rose  Hiett  against  Wesley 
Hiett  for  divorce.  The  trial  court  granted  an  absolute  divorce, 
but  denied  permanent  alimony.  From  that  portion  of  the  decree, 
plaintiff  appeals. 

Ames,  c.''  *  *  *  At  the  time  of  the  marriage,  in  1887,  both 
of  the  parties  were  well  advanced  in  years ;  she  being  a  widow,  the 
mother  of  six  children  varying  in  age  from  5  to  17  years,  and  he 
a  widower,  the  father  of  four  children  of  mature  ages,  all  of  whom 
had  ceased  to  reside  with  him.  He  and  his  wife  and  her  children 
resided  together  and  constituted  the  family  until  the  children,  one 
after  another,  reached  years  of  maturity,  and  established  homes 
of  their  own,  and  thereafter  the  marriage  relation  subsisted  until 
1902,  when  a  scene  of  violence  occurred,  and  a  final  separation  took 
place.  *  *  *  The  family  were  laborious  and  frugal,  *  *  * 
and  by  the  rise  in  the  value  of  land  bought  and  used  for  a  farm 
and  family  homestead  had  accumulated,  at  the  time  of  the  sep- 
aration, property  of  a  value  variously  estimated  by  witnesses,  but 
probably  worth  not  far  from  $6,000,  subject  to  an  indebtedness,  se- 
cured by  a  mortgage  on  the  farm  of  $2,600,  leaving  a  surplus  of 
say  $3,400  to  $3,600.  The  personal  property  consisted  of  about 
$1,000  worth  of  neat  cattle  and  of  other  live  stock  and  of  utensils, 
such  as  are  usually  kept  on  a  farm,  to  the  estimated  value  of  about 
$1,500. 

A  few  days  after  the  separation  the  husbands .  of  two  of  the 
daughters  of  the  plaintiff  and  two  of  her  sons  visited  the  defend- 
ant, and  made  an  agreement  with  him  on  her  behalf  for  a  perpetual 
separation  thereafter,  and  for  a  division  of  property  in  contem- 
plation and  consideration  thereof.  For  that  purpose  they  visited 
the  farm  of  the  defendant,  and  inspected  the  premises  and  ac- 
quainted themselves  with  the  quantity  and  character  of  his  pos- 
sessions. It  is  not  proved  that  he  was  guilty  of  any  fraud,  conceal- 
ment, or  intimidation  in  the  transaction,  or  that  they  did  not  ac- 
quire fully  and  accurately  all  the  information  they  desired.     The 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (SdEd.)  §§ 
93-95. 

2  Part  of  the  opinion  is  omitted. 


AGREEMENTS   OF    SEPARATION  125 

plaintiff  was  not  present,  she  having  intrusted  the  protection  of 
her  interests  to  the  persons  named.  After  the  matter  had  been 
amicably  adjusted  to  the  apparent  satisfaction  of  all  persons  con- 
cerned, the  plaintiff  was  called  upon  to  attend,  with  the  defendant 
and  the  intermediaries,  at  the  offices  of  a  firm  of  attorneys  in  a 
neighboring  village,  where  the  agreement  was  reduced  to  writing 
and  executed  by  both  parties  in  the  manner  prescribed  by  law  for 
the  execution  and  acknowledgment  of  deeds  of  real  estate.  The 
instrument  recited  the  occasion  and  purpose  of  its  execution,  viz., 
the  perpetual  separation  of  husband  and  wife,  the  release  by  the 
latter  of  her  dower  and  homestead  rights  in  the  land,  and  her  in- 
terest in  so  much  of  the  personal  estate  as  was  not  set  apart  to 
her  in  severalty  and  freed  from  the  claims  of  her  husband,  and 
which  consisted  of  28  of  the  50  head  of  neat  cattle,  and  a  horse, 
harness,  and  buggy,  certain  articles  of  household  furniture,  certain 
domestic  fowls,  and  50  bushel  each  of  corn  and  oats.  What  all 
these  articles  were  worth  it  is  difficult,  if  not  impossible,  to  as- 
certain ;  the  neat  cattle  alone  probably  not  far  from  $500,  and  the 
rest  from  $100  to  $200,  or  possibly  more.  Doubtless  the  value,  both 
of  what  was  taken  and  of  what  was  left,  was  considerably  greater 
for  use  than  for  sale.  The  instrument  concluded  with  mutual  re- 
leases of  property  and  marital  rights  and  obligations  except  the 
right  of  either  party  to  prosecute  an  action  for  a  divorce.  A  divi- 
sion and  separation  of  the  property  pursuant  to  the  agreement  took 
place  at  once,  and  shortly  afterwards  this  action  was  begun. 

The  answer  pleaded  this  instrument  in  bar  of  the  demand  of  the 
petition  for  permanent  alimony,  and  the  reply  assails  it  in  general 
terms  as  being  "unfair  and  unjust,"  and  as  having  been  obtained 
from  the  plaintiff  in  consequence  of  threats  and  ill  usage  by  the  de- 
fendant, and  of  her  ignorance  of  her  rights  in  the  property  divided. 
But  there  is  no  averment  of  any  specific  act  or  fact  of  fraud,  ill 
usage,  or  intimidation  with  respect  to  making  or  carrying  out  of 
the  agreement,  and,  as  we  have  said,  none  is  proved,  and  we  are 
cited  to  neither  principle  nor  authority  for  holding  that  any  will 
be  presumed.  The  whole  tenor  of  the  argument  of  counsel  for  ap- 
pellant is  that  the  agreement  was  improvidently  made.  Whether 
such  fact,  if  it  existed,  would  authorize  the  court  to  set  aside  or 
disregard  the  instrument,  we  are  not  called  upon  to  decide,  and 
do  not  decide.  The  weight,  both  of  reason  and  authority,  is  that 
such  agreements,  Inade  after  separation,  are,  if  fair  and  free  from 
fraud,  imposition,  or  undue  means,  in  furtherance  of  good  morals, 
and  in  accord  with  sound  policy.  They  stand  upon  a  quite  dift'erent 
basis  from  those  made  in  contemplation  and  consideration  of  fu- 
ture separation.  Daniels  v.  Benedict,  97  Fed.  367,  38  C.  C.  A.  592; 
Galusha  v.  Galusha,  116  N.  Y.  635,  22  N.  E.  1114,  6  L.  R.  A.  487, 
15  Am.  St.  Rep.  453.  No  prior  decision  of  this  court  in  conflict 
herewith  has  been  brought  to  our  attention.     *     ♦     * 


126  SEPARATION  AND  DIVOECB 

We  do  not,  however,  intend  to  commit  ourselves  to  the  doctrine 
contended  for  by  appellee,  and  which  is,  perhaps,  held  by  some  of 
the  authorities  that  an  instrument  like  that  under  discussion  is 
to  be  treated  in  all  respects  like  other  contracts  upon  a  valid  con- 
sideration between  parties  sui  juris,  and  impeachable  for  fraud  or 
duress  only  by  compliance  with  the  strict  rules  of  procedure  and 
proof  applicable  to  suits  involving  such  agreements.  While  there 
is  no  presumption  against  the  fairness  and  good  faith  of  such  ar- 
rangements, we  think  that  the  presumption  in  their  favor  is  not 
so  strong  as  in  cases  of  contracts  between  parties  not  so  related, 
and  that  public  policy,  as  well  as  due  regard  for  the  disabilities 
of  the  "weaker  vessel,"  requires  that  the  court  should  scrutinize 
them  closely,  without  too  much  respect  for  formal  rules  of  plead- 
ing and  procedure,  and  see  to  it  that  no  unconscionable  advantage 
obtained  through  fraud  or  intimidation,  or  even  by  reason  of  ig- 
norance, improvidence,  or  passion,  is  availed  of  to  the  unjust  benefit 
of  the  stronger  and  more  capable  or  more  crafty  spouse.  We  do 
not  find,  however,  any  of  these  elements  in  the  record  before  us. 
The  persons  who  made  the  contract  and  settlement  on  the  behalf  of 
the  appellant  were  her  next  of  kin  and  their  spouses.  They  were 
certainly  the  peers  in  intelligence  and  experience  of  the  broken 
old  man  with  whom  they  dealt.  There  was  no  fraud  or  conceal- 
ment, and  they  labored  under  no  delusion,  either  as  to  the  char- 
acter or  value  of  the  property  or  as  to  the  legal  or  equitable  rights 
of  the  parties  thereto,  and  they  were  fully  cognizant  of  all  the 
history  and  circumstances  of  its  acquisition  and  accumulation ;  and 
they  furthermore  had  an  interest,  both  direct  and  indirect,  in  see- 
ing to  it  that  their  mother  secured  all  to  which  she  was  entitled.  In 
the  absence  of  a  showing  to  the  contrary,  the  presumption  is  strong 
that  they  succeeded  in  attaining  that  object. 

We  do  not  feel  called  upon  to  go  into  an  elaborate  discussion  of 
items  and  values  of  property.  Alimony  is  not  to  be  awarded  ei- 
ther as  an  emolument  to  the  wife  or  as  a  punishment  for  the  hus- 
band. The  defendant  is  advanced  in  years,  and  left  alone  to  strug- 
gle unassisted  with  a  comparatively  heavy  burden  of  indebtedness, 
and  regard  must  be  had  for  his  subsistence  in  his  old  age.  The 
plaintiff  obtained  by  the  settlement  at  least  as  much  as,  or  probably 
considerably  more  than,  she  would  have  acquired  under  the  stat- 
ute of  descents  and  distributions  if  her  husband  had  died  intestate 
on  the  day  before  the  contract  was  made.  We  think  that  under 
the  circumstances  she  has  nothing  of  which  to  complain,  and  rec- 
ommend that  the  judgment  of  the  district  court  be  affirmed. 

Letton  and  Oldham,  CC,  concur. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion, 
it  is  ordered  that  the  judgmenj:  of  the  district  court  be  affirmed.' 

«  See,  also,  Effray  v.  Effray,  110  App.  Div.  545,  97  N.  Y.  Supp.  286  (1905). 


JUK18D1CTION   TO   GRANT   DIVORCE  127 


II.  Jurisdiction  to  Grant  Divorce* 


ELLIS  V.  ELLIS. 

(Supreme  Court  of  Minnesota,  1893.     55  Minn.  401,  56  N.  W.  1056,  23  L.  R. 

A.  287,  43  Am.  St.  Rep.  514.) 

GiLFiLLAN,  C.  J."  Appeal  from  an  order  appointing  an  admin- 
istratrix. Stating  the  history  of  the  matters  involved  in  chrono- 
logical order,  in  1869  Matthew  Ellis  and  Rachel  Cottrell,  then 
residents  in  Wisconsin,  intermarried  in  that  state,  and  resided 
therein — the  latter  part  of  the  time  at  Hudson — from  the  time  of 
their  marriage  till  October,  1883,  when  they  came  to  St.  Paul,  Min- 
nesota. February  29,  1884,  she  commenced  by  proper  personal 
service  of  summons  an  action  against  him  for  divorce  in  the  cir- 
cuit court  for  the  county  of  St.  Croix  (in  which  Hudson  is  sit- 
uated), in  said  state.  Her  complaint  was  sworn  to  by  her,  and 
it  alleged,  among  other  things,  that  she  then  was,  and  for  more 
than  three  years  last  past  had  been,  a  resident  of  said  county  and 
state,  and  that  for  more  than  a  year  prior  to  bringing  the  action 
the  defendant  had  willfully  deserted  and  refused  to  live  and  co- 
habit with  her;  and  it  demanded  judgment  dissolving  the  mar- 
riage, and  requiring  the  defendant  to  pay  her  the  sum  of  $8,000 
alimony.     *     *     * 

March  27,  1884,  judgment  in  that  action  was  rendered,  dissolv- 
ing the  marriage  between  the  parties,  and  allowing  the  plaintiff 
therein  the  alimony  stipulated;  and  that  alimony  was  paid.  Sep- 
tember 2,  1886,  Matthew  Ellis  and  Flora  Wilson  intermarried,  and 
they  lived  together  as  husband  and  wife  until  December  7,  1892, 
when  he  died  in  St.  Paul,  Ramsey  county,  in  this  state.  Flora  El- 
lis, the  second  wife,  filed  a  petition  in  the  probate  court  of  said 
county,  stating  the  necessary  jurisdictional  facts,  alleging  that  Mat- 
thew Ellis  died  intestate,  and  that  she  was  his  widow,  and  asking 
to  be  appointed  his  administratrix.  On  the  day  appointed  for  the 
hearing  Rachel  Ellis  appeared,  denied  that  Flora  was  the  widow, 
alleged  that  she  was  the  widow,  and  asked  that  she  be  appointed 
administratrix.  At  the  same  time  appeared  a  brother  and  sister 
of  deceased,  representing  that  the  deceased  had  made  a  will,  still 
in  force,  and  asking  the  court  to  make  the  proper  order  or  decree 
in  the  premises.  The  probate  court  appointed  Flora  administra- 
trix,  and  on  an  appeal   to  the   district   court,   in   which  the   court 

*  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§§  97,  98. 

5  Part  of  the  opinion  is  omitted. 


128  SEPARATION  AND  DIVORCE 

heard  all  the  parties,  that  court  affirmed  the  decision  of  the  pro- 
bate court.     *     *     * 

The  principal  question  in  the  case  was  presented  by  the  appel- 
lants' offer  to  prove,  and  the  ruling  of  the  court  excluding  the  evi- 
dence, that  at  the  time  of  bringing  the  action  in  Wisconsin  and  of 
the  divorce  decree  neither  of  the  parties  to  it  was  a  resident  of  that 
state,  but  that  both  were  residents  of  this  state.  It  is  claimed  for 
the  evidence  that,  if  admitted,  it  would  have  shown  that  the  Wis- 
consin court  had  no  jurisdiction  of  the  subject-matter  of  the  action, 
to  wit,  the  marital  relation  between  the  parties;  that  consequently 
the  decree  was  void ;  Rachel  remained  the  wife,  and  is  now  the 
widow,  of  Matthew;  and  that  the  marriage  with  Flora  was  void. 
The  question  thus  raised  is  of  great  importance,  and  difficult  to 
satisfactorily  determine.  It  is  an  undisputable  general  proposition 
/^l  that  the  tribunals  of  a  country  have  jurisdiction  over  a  cause  of 
' '  divorce,  wherever  the  offense  may  have  occurred,  if  neither  of  the 
parties  have  an  actual,  bona  fide  domicile  within  its  territory.  This 
necessarily  results  from  the  right  of  every  nation  or  state  to  deter- 
mine the  status  of  its  own  domiciled  citizens  or  subjects  without 
interference  of  foreign  tribunals  in  a  matter  with  which  they  have 
no  concern.  But  when  in  the  court  of  a  state  an  action  for  divorce 
is  brought,  and  a  decree  of  divorce  rendered,  the  court  is  presumed 
to  have  determined  the  facts  essential  to  its  jurisdiction,  among 
them  the  residence  of  the  parties.  When,  as  between  whom,  and 
to  what  extent  is  such  determination  binding  in  the  state  in  which 
the  parties  are  in  fact  residents? 

The  cases  in  which  the  question  may  arise  may  be  divided  into 
three  classes:  First,  in  proceedings  between  the  state  of  the  par- 
ties' actual  residence  and  one  of  the  parties;  second,  in  proceedings 
between  the  parties  in  the  state  of  their  actual  residence,  where 
the  divorce  in  the  other  state  was  procured  on  the  application  of 
one  of  them,  the  other  not  appearing  in  the  action  to  procure  it; 
third,  in  proceedings  between  the  parties  when  both  voluntarily  ap- 
peared in  the  action  in  which  the  divorce  was  granted,  and  con- 
sented to  the  jurisdiction,  or  that  the  court  might  determine  the 
facts  on  which  the  jurisdiction  depended.  In  the  second  class  of 
cases,  since  it  was  settled  that  a  judgment  of  another  state  can  be 
assailed  on  the  ground  of  want  of  jurisdiction  in  the  court  to 
render  it,  the  decisions  have  been  practically  uniform  that  the  party 
who  did  not  submit  to  the  jurisdiction  is  not  bound  by  the  judg- 
ment. 

Of  the  decisions  in  cases  coming  under  the  first  class  we  refer 
to  four — Hood  v.  State,  56  Ind.  263,  26  Am.  Rep.  21 ;  Van  Fossen 
V.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507;  People  v.  Dawell,  25 
Mich.  247,  12  Am.  Rep.  260;  and  State  v.  Armington,  25  Minn. 
29 — all  cases  between  the  state  of  actual  residence  and  one  of  the 


JURISDICTION   TO   GRANT   DIVORCE  •  129 

parties.  In  the  first  of  these  the  record  of  the  judgment  showed 
that  neither  of  the  parties  was  a  resident  of  Utah,  where  it  was 
rendered,  so  that  the  record  impeached  itself.  It  was,  of  course, 
held  that  the  judgment  was  void.  In  each  of  the  others  it  was 
held  that,  in  order  to  show  want  of  jurisdiction  in  the  court  ren- 
dering the  judgment,  it  might  be  shown  that  neither  of  the  parr 
ties  resided  within  the  state  in  which  it  was  rendered,  and,  that 
being  shown,  it  was  void.  In  the  opinion  in  each  case  language 
is  used  apparently  sustaining  the  proposition  that  such  would  be 
the  rule  however  the  question  of  the  validity  of  the  judgment  might 
arise.  In  People  v.  Dawell,  Mr.  Justice  Cooley  delivered  the  pre- 
vailing opinion,  Mr.  Chief  Justice  Ghristiancy  concurring,  and 
Mr.  Justice  Campbell  dissenting.  It  was  enough  for  the  purpose 
of  that  case  to  decide  whether  the  judgment  was  valid  as  against 
the  state  of  residence.  Whether  it  was  valid  as  between  the  par- 
ties was  not  before  the  court;  and  such  was  the  case  in  Hood  v. 
State  and  State  v.  Armington.  So  far  as  the  state  of  residence 
is  concerned,  it  must  be  taken  upon  the  authorities,  and  certainly 
in  this  state,  upon  the  Armington  Case,  that  it  is  not  bound  by 
a  judgment  divorcing  two  of  its  resident  citizens,  rendered  by  a 
court  of  another  state.  There  are  reasons  why  it  should  not  be 
bound,  however  it  may  be  between  the  parties  which  we  will 
presently  refer  to. 

It  does  not  follow  that  the  judgment  is  void  in  the  third  class 
of  cases.  A  judgment  operating  on  a  res  may  be  binding  between 
the  parties  to  the  action  without  binding  one  not  a  party,  but  in- 
terested in  the  res.  In  an  action  for  divorce  the  res  upon  which 
the  judgment  operates  is  the  status  of  the  parties.  There  are 
three  parties  interested  in  that — the  husband,  the  wife,  and  the 
state  of  their  residence.  This  was  in  the  mind  of  Mr.  Justice 
Cooley  in  writing  the  opinion  in  the  Dawell  Case.  He  said:  "But 
it  is  said  if  the  parties  appear  in  the  case  the  question  of  juris- 
diction is  precluded.  That  might  be  so  if  the  matter  of  divorce 
was  one  of  private  concern  exclusively."  "As  the  laws  now  are, 
there  are  three  parties  to  every  divorce  proceeding — the  husband, 
the  wife,  and  the  state;  the  first  two  parties  representing  their 
respective  interests  as  individuals ;  the  state  concerned  to  guard 
the  morals  of  its  citizens,  by  taking  care  that  neither  by  collusion 
nor  otherwise  shall  divorce  be  allowed  under  such  circumstances 
as  to  reduce  marriage  to  a  mere  temporary  arrangement  of  con- 
science or  passion."  "Such  being  the  case,  suppose  we  admit  that 
the  parties  may  be  bound  by  their  voluntary  appearance  in  the 
foreign  jurisdiction.  How  does  that  affect  the  present  case?  How, 
and  in  what  manner,  did  the  Indiana  court  obtain  jurisdiction  of 
the  third  party  entitled  to  be  heard  in  this  proceeding;  that  is  to 
say,  of  the  state  of  Michigan?" 
Cooley  P.&  D.Rel.— 9 


130     .  SEPARATION  AND  DIVORCE 

This  line  of  reasoning  was  applied  by  the  same  court  in  Waldo 
V.  Waldo,  52  Mich.  94,  17  N.  W.  710.  One  question  in  that  case 
was  whether  the  plaintiff  was  the  widow  of  Jerome  B.  Waldo, 
just  as  in  this  it  is  whether  Flora  Ellis  is  the  widow  of  Matthew. 
Previous  to  her  marriage  to  Jerome  B.  she  had  been  married  to 
one  Carey,  from  whom  she  had  obtained  a  divorce  in  Indiana, 
both  parties  appearing  in  the  action  for  it.  The  court  held  the 
judgment  could  not  be  assailed  by  showing  want  of  residence  in 
Indiana  and  residence  in  Michigan,  saying  in  one  part  of  the  opin- 
ion:  "This  state  has  never  complained  of  that  judgment,  and 
neither  party  has  objected  to  it."  The  Dawell  Case  was  not  re- 
ferred to,  and  we  may  from  both  cases  take  the  rule  in  that  state 
to  be  that,  while  the  state  cannot  be  bound  by  its  resident  citizens 
appearing  in  and  consenting  to  the  jurisdiction  of  a  court  in  an- 
other state  in  an  action  for  divorce,  the  parties  may  so  bind  them- 
selves in  respect  to  their  individual  interests. 

In  Kinnier  v.  Kinnier,  45  N.  Y.  535,  6  Am.  Rep.  132,  a  private 
action,  it  was  held  that  a  judgment  of  divorce  by  the  court  of  an- 
other state,  both  parties  appearing  in  the  action,  could  not  be 
assailed  on  the  question  of  residence.  In  the  course  of  the  opinion 
the  court.  Church,  C.  J.,  said:  "Nor  can  I  assent  to  the  reason 
given  for  allowing  the  husband  to  repudiate  the  binding  force  of 
the  judgment  upon  him,  after  voluntarily  submitting  himself  to 
the  jurisdiction  of  the  court,  and  litigating  the  case  upon  its  mer- 
its ;"  thus  recognizing  the  effect  of  the  voluntary  submission  upon 
the  parties'  right  to  question  the  judgment.  Cases  in  Massa- 
chusetts, to  which  we  are  cited  by  appellants,  are  hardly  of  au- 
thority on  the  point,  because  the  decisions  were  based  mainly  on 
a  statute  of  that  state.  Ellis  v.  White,  61  Iowa,  644,  17  N.  W.  28, 
has  only  bearing  on  one  phase  of  this  case.  It  was  there  held 
that  a  plaintiff  in  an  action  for  divorce  and  alimony  cannot  ques- 
tion the  jurisdiction  of  the  court  after  accepting  the  benefits  of  the 
judgment. 

It  may  seem  anomalous  that  a  judgment  of  divorce  can  be  so 
far  effectual  between  the  parties  as  to  extinguish  all  rights  of 
property  dependent  on  the  marriage  relation,  without  being  ef- 
fectual to  protect  them  from  accountability  to  the  state  for  their 
subsequent  acts.  One  reason  why  they  ought  not  to  be  permitted, 
by  going  into  another  state  and  procuring  a  divorce,  to  escape 
accountability  to  the  laws  of  their  state,  is  that  their  act  is  a  fraud 
upon  the  state,  and  an  attempt  to  evade  its  laws,  to  which  it  in  no 
wise  consents,  and  it  may  therefore  complain.  But  the  parties  do 
consent,  and  why  should  they  be  heard  to  complain  of  the  conse- 
.  quences  to  them  of  what  they  have  done?  W^hy-^hould  they  be 
permitted  to  escape  those  consequences  by  saying:  "It  is  true  that 
by  a  false  oath  made  by  one  of  us,  and  connived  at  by  the  other, 
we  committed  a  fraud  in  the  Wisconsin  court,  and  induced  it  to 


GROUNDS   FOR   DIVORCE — CRUELTY  131 

take  cognizance  of  the  case ;  but  now  we  ask  to  avoid  its  judgment  i 
by  proof  of  our  fraud  and  perjury  or  subornation  of  perjury."  Be-  ' 
cause  we  do  not  think  it  can  be  done  the  parties  must,  so  far  as 
their  individual  interests  are  concerned,  abide  by  the  judgment 
they  procured  that  court  to  render;  and,  of  course,  what  will  bind 
them  will  bind  those  who  claim  through  them,  or  either  of  them, 
which  is  the  case  with  the  appellants  other  than  Rachel. 

There  were  other  minor  questions  raised  by  the  assignments  of 
error,  but  we  do  not  see  any  merit  in  any  of  them.    Order  affirmed.® 


III.  Grounds  for  Divorce — Cruelty* 


TRENCHARD  v.  TRENCHARD. 
(Soipreme  Court  of  Illinois,  1910.     245   111.  313,  92  N.  E.  243.) 

Farmer,  J.'  On  the  25th  of  July,  1907,  Anna  M.  Trenchard  filed 
a  bill  in  the  circuit  court  of  Cook  county  against  her  husband, 
Joseph  Trenchard,  for  divorce,  on  the  ground  of  extreme  and  re- 
peated cruelty.  Defendant  answered  the  bill,  denying  all  its  ma- 
terial charges.  A  hearing  was  had  in  tfce  circuit  court  and  a  de- 
cree entered  in  favor  of  complainant  granting  a  divorce  and  award- 
ing complainant  custody  of  the  only  child  of  the  parties.  Defend- 
ant sued  out  a  writ  of  error  from  the  Appellate  Court  for  the  First 
District  to  reverse  the  decree  of  the  circuit  court.  The  Appellate 
Court  affirmed  the  decree  of  the  circuit  court,  and  upon  the  peti- 
tion of  defendant  a  writ  of  certiorari  was  awarded  by  this  court 
and  the  record  is  brought  here  for  our  review. 

The  principal  contentions  of  plaintiff  in  error  are  that  the  allega- 
tions of  the  bill  as  to  extreme  and  repeated  cruelty  are  not  suffi- 
cient; also  that  the  decree  does  not  recite  facts  that  justify  the  re- 
lief granted. 

The  bill  alleges  that  the  parties  were  married  in  August,  1905 ; 
that  one  child  was  born  to  them  in  October,  1906;  that  the  com- 
plainant had  always  conducted  herself  toward  her  husband  as  a 
dutiful  wife,  but  that  he  had  been  guilty  of  extreme  and  repeated 
cruelty  toward  her;  "that  in  the  month  of  May,  1906,  the  said 
Joseph  Trenchard  violently  shook  your  oratrix  and  held  her  down 
upon  a  bed  with  great  force ;  that  on  or  about  June  9,  1906,  shortly 

8  Extraterritorial  effect  of  divorce,  see  Haddock  v.  Haddock,  post,  p.  144. 

7  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
100-102. 

8  Part  of  the  opinion  is  omitted. 


132  SEPARATION   AND    DIVORCE 

before  the  birth  of  her  said  child,  the  said  Joseph  Trenchard  sent 
your  oratrix  away  from  their  home  and  said  it  would  embarrass 
his  daughter  by  a  previous  marriage  to  have  her  around  in  her 
condition ;  that  in  the  months  of  February  and  March,  in  the  year 
1907,  the  said  Joseph  Trenchard  persistently  quarreled  with  your 
oratrix  and  kept  her  awake  at  night,  so  that  your  oratrix  became  the 
subject  of  nervous  distress;  that  in  the  month  of  April,  1907,  the 
said  Joseph  Trenchard  seized  your  oratrix  and  pushed  her  violently 
against  the  door  of  the  room  in  which  they  were."  Defendant  an- 
swered the  bill,  denying  his  wife  had  always  conducted  herself 
as  a  dutiful  wife ;  denying  that  he  had  been  guilty  of  extreme  and 
repeated  cruelty  toward  her;  denying  each  specific  act  of  cruelty 
set  up  in  the  bill. 

The  only  recital  of  facts  in  the  decree  as  to  the  extreme  and  re- 
peated cruelty  alleged  in  the  bill  is,  "that  the  defendant  has  been 
guilty  of  extreme  and  repeated  cruelty,  as  charged  in  complainant's 
bill  of  complaint."  We  are  of  the  opinion  the  bill  does  not  state 
a  case  of  extreme  and  repeated  cruelty  within  the  meaning  of  our 
statute.  What  is  meant  by  cruelty,  as  used  in  our  statute,  has  been 
the  subject  of  consideration  by  this  court  in  many  cases,  and  has 
been  construed  to  mean  physical  acts  of  violence;  bodily  harm, 
such  as  endangers  life  or  limb ;  such  acts  as  raise  a  reasonable  ap- 
prehension of  bodily  harm  and  show  a  state  of  personal  danger 
incompatible  with  the  marriage  state.  Bad  temper,  petulance  of 
manner,  rude  language,  want  of  civil  attentions,  or  angry  or  abusive 
words  are  not  sufficient  grounds  for  divorce  for  extreme  and  re- 
peated cruelty.  Henderson  v.  Henderson,  88  111.  248;  Harman  v. 
Harman,  16  111.  85;  Embree  v.  Embree,  53  111.  394;  Vignos  v.  Vig- 
nos,  15  111.  186;  Turbitt  v.  Turbitt,  21  111.  438;  Maddox  v.  Mad- 
dox,  189  111.  152,  59  N.  E.  599,  52  L.  R.  A.  628,  82  Am.  St.  Rep. 
431 ;  Fizette  v.  Fizette,  146  111.  328,  34  N.  E.  799. 

But  two  acts  of  alleged  physical  violence  are  charged  in  the 
bill,  viz.,  that  in  May,  1906,  plaintiff  in  error  violently  shook  his 
wife  and  held  her  down  upon  a  bed  with  great  force,  and  that  in 
April,  1907,  he  seized  and  pushed  her  violently  against  a  door  of 
a  room  in  which  they  were.  There  is  no  charge  that  these  acts 
were  committed  in  anger,  without  justifiable  provocation,  nor  that 
defendant  in  error  was  hurt  or  injured  on  either  occasion,  nor  are 
any  facts  alleged  in  the  bill  from  which  it  is  made  to  appear  that 
as  aresult  of  these  alleged  acts  of  violence  defendant  in  error  might 
reasonably  fear  she  was  in  danger  of  receiving  bodily  harm  at  the 
hands  of  her  husband  if  she  continued  to  live  with  him. 

The  dissolution  of  the  marriage  relation  is  a  grave  matter  and 
can  only  be  justified  where  the  case  is  strictly  within  the  statute. 
Our  statute  is  sufficiently  liberal  in  enumerating  the  causes  for 
which  a  divorce  may  be  granted,  and  it  has  always  been  the  policy 
of  this  court  that  parties  seeking  a  divorce  should  bring  themselves 


GROUNDS   FOR    DIVORCE — CRUELTY  133 

within  the  statute.  The  dissolution  of  the  marriage  tie  is  a  sub- 
ject in  which  not  alone  the  parties  to  it  are  interested  but  the  pub- 
lic is  interested  also.     *     *     * 

It  is  not  in  every  case  where  a  wife  is  justified  in  leaving  her 
husband  and  living  separate  and  apart  from  him  that  she  would  be 
entitled  to  a  divorce  on  the  ground  of  extreme  and  repeated  cruel- 
ty. There  is  no  certificate  of  evidence  in  the  record  and  no  facts 
are  recited  in  the  decree  from  which  the  character  of  the  acts  com- 
plained of  as  extreme  and  repeated  cruelty  can  be  determined.  The 
recital  that  plaintiff  in  error  had  been  "guilty  of  extreme  and  re- 
peated cruelty  as  charged  in  complainant's  bill"  is  wholly  insuffi- 
cient as  a  finding  of  facts,  under  the  allegations  of  the  bill,  to  sus- 
tain the  decree.  It  has  been  repeatedly  held  that  a  decree  in  chan- 
cery, granting  affirmative  "relief,  must  be  supported  by  evidence 
preserved  by  a  certificate  of  evidence,  or  by  a  finding  of  facts  in 
the  decree  itself.     *     *     * 

The  judgment  of  the  Appellate  Court  and  the  decree  of  the 
circuit  court  are  therefore  reversed,  and  the  cause  remanded  to  the 
circuit  court. 


RADER  V.  RADER. 

(Supreme  Court  of  Iowa,  1907.     136  Iowa,  223,  113  N,  W.  817.) 

Deemer,  J.  Cruel  and  inhuman  treatment,  calculated  to  endanger 
life,  and  consisting  of  the  use  of  profane,  vulgar,  and  obscene  lan- 
guage toward  plaintiff,  threats  of  bodily  injury,  and  deprivation  of 
food  and  wearing  apparel,  were  the  grounds  alleged  for  a  divorce. 
These  were  denied  by  defendant.  The  trial  court  granted  the  di- 
vorce and  gave  plaintiff  the  custody  of  a  minor  child.  The  par- 
ties were  married  on  the  18th  day  of  March  1903,  and  they  lived 
together  as  husband  and  wife  until  March  1,  1905,  when  plaintiff 
left  her  husband  and  went  to  live  with  her  parents. 

The  sole  question  in  the  case  is  one  of  fact,  and  that  is:  Was 
defendant  guilty  of  such  inhuman  treatment  of  plaintiff  as  endan- 
gered her  life?  We  shall  not,  of  course,  attempt  to  set  out  the 
entire  record.  It  is  enough  for  the  purpose  of  the  case  to  state 
our  conclusions.  Whilst  the  case  is  not  a  strong  one,  we  think  there 
is  enough  to  show  that  defendant  used  profane,  obscene,  insulting, 
and  abusive  language  toward  his  wife,  complained  of  her  cooking, 
and  generally  treated  her  in  such  a  manner  as  to  endanger  her  life 
and  health.  He  never,  it  is  true,  used  physical  violence,  but  he  did 
that  which  to  any  ordinary  woman  is  more  cruel.  After  the  first 
few  Aveeks  of  married  life,  he  seems  to  have  lost  all  affection  for 
his  wife.  He  was  profane  and  abusive,  criticised  her  cooking,  failed 
to  provide  her  with  clothing,  and  in  other  ways  made  life  miserable. 
True,  most  of  the  charge  defendant  denies ;  but  the  witnesses  were 


134  SEPARATION  AND  DIVORCE 

all  before  the  trial  court,  and  plaintiff's  condition  of  health  as  au- 
toptically  disclosed,  and  her  manner  and  demeanor  upon  the  wit- 
ness stand,  as  well  as  defendant's  appearance  and  demeanor,  should 
all  be  considered  and  given  due  weight.  And  in  such  cases  as  this 
the  finding  of  the  trial  court  should  be  given  due  consideration  in 
view  of  the  conflicting  testimony  adduced. 

Plaintiff  was  comparatively  a  well  woman  when  she  married  the 
defendant,  and  when  she  left  him  she  was  much  broken  both  in 
health  and  spirits,  and  for  this  defendant  seems  to  have  been  re- 
sponsible. It  is  not  necessary,  of  course,  to  show  physical  assaults 
in  order  to  make  out  a  case  of  cruelty.  The  general  treatment  ac- 
corded the  wife  by  the  husband  should  be  considered,  and  if,  upon 
the  whole  record,  it  appears  that  the  life  and  health  of  the  wife 
has  been  endangered  by  ill  treatment,  be  that  nothing  more  than 
abusive,  insulting,  profane,  and  vulgar  language,  lack  of  affection, 
or'failure  to  furnish  the  necessaries  of  life,  a  divorce  should  be 
granted. 

Giving  to  the  finding  of  the  trial  court  its  due  weight,  we  are 
constrained  to  hold  that  the  divorce  was  properly  granted.  The^e-. 
cree  is  therefore  affirmed. 


IV.  Same — Desertion  • 


WATSON  v.  WATSON. 

(Court  of  Chancery  of  New  Jersey,  1894.     52  N.  J.  Eq.  349,  28  Atl.  467.) 
Suit  by  George  E.  Watson  against  Mary  L.  Watson  for  divorce. 
On  exceptions  to  master's  report,  advising  that  the  petition  be  dis- 
missed. 

McGiivL,  Ch.  The  petitioner  and  defendant  were  married  in  1871, 
and  from  that  time  until  1890  lived  together  as  husband  and  wife. 
In  April,  1890,  upon  the  occasion  of  a  disagreement,  at  which  the 
husband,  as  he  says,  merely  scolded  her,  the  wife  withdrew  from 
his  bed,  and  declared  that  she  would  never  occupy  it  with  him 
again.  She  thereupon  removed  to  the  front  or  sitting  room  of  the 
two  apartments  they  occupied  in  a  boarding  house,  locked  the  door 
between  the  apartments,  and  made  her  bedroom  there  until  July, 
1892,  when  she  took  board  at  another  place.  I_  find  that  during 
the  time  in  question,  although  the  communications  between  the 
husband  and  wife  were  rude  and  severely  constrained,  they  never- 
theless admitted  of  indirect  consultations  concerning  the  needs, 
comfort,  and  welfare  of  their  two  daughters,  who  were  away  at 

9  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
i  103. 


GROUNDS   FOR   DIVORCE — DESERTION  135 

school.  The  wife  also  cared  for  their  rooms  and  linen,  and  the 
husband  gave  her  money  for  her  wants,  and  paid  her  board.  They 
appeared  at  meals  at  the  same  time,  and  at  the  same  table,  so  that 
their  disagreement  did  not  manifest  itself  to  other  boarders  in  the 
house. 

The  petition  was  filed  early  in  the  year  1893,  and  alleges,  as 
ground  for  divorce,  a  willful,  continued,  and  obstinate  desertion  by 
the  husband  for  two  years.  To  cover  that  statutory  period,  the 
petitioner  seeks  to  include  a  portion  of  the  time  prior  to  July 
1892,  and  hence  the  cLuestion  is  presented  whether  the  withdrawal 
of  a  wife  from  sexual  intercourse  with  her  husband,  assuming  that 
there  was  no  just  cause  for  the  withdrawal,  alone  constitutes  "de- 
sertion," within  the  meaning  of  the  statute. 

A  single  word  as  to  a  suggestion  of  acquiescence  on  the  part  of 
the  petitioner.  It  does  not  appear  that  he,  with  determined  earnest- 
ness, ever  sought  the  restoration  of  his  marital  rights.  He  appears 
rather  to  have  submitted  to  the  position  in  which  his  wife's  deter- 
mination placed  him,  acting  as  one  who,  for  cause,  acquiesces  in  the 
justness  of  a  decision  against  him,  basing  whatever  feeble  effort  he 
may  have  made  in  that  direction  upon  consideration  for  their  chil- 
dren. Upon  her  part,  on  the  contrary,  the  attitude  appears  to  be 
one  of  distress,  and  yet,  filled  with  consciousness  of  power  which 
the  right  gives,  she  fearlessly  demands  her  support  from  him.  I 
think,  however,  that  this  appearance  of  acquiescence  of  the  hus- 
band rests  too  largely  upon  inference  and  conjecture  to  be  made  the 
basis  of  a  decision.  I  prefer  to  assume  that  there  was  no  acquies- 
cence, and  to  meet  the  question  first  stated. 

I  have  read  with  interest  the  elaborate  argument  of  Air.  Bishop, 
in  his  work  on  Marriage,  Divorce,  and  Separation  (volume  2,  § 
1676  et  seq.),  in  favor  of  an  affirmative  answer  to  this  question  as 
the  "better  opinion,"  but  I  am  unwilling  to  accept  it  as  the  true 
construction  of  our  statute.  The  word  "desertion,"  I  think,  is 
used  in  the  sense  of  "abandon,"  to  the  extent  that  the  deserted 
party  must  be  deprived  of  all  real  companionship  and  every  sub- 
stantial duty  which  the  other  owes  to  him  or  her.  It  would,  I 
think,  degrade  the  marriage  relation  to  hold  that  it  is  abandoned 
when  sexual  intercourse  only  ceases.  The  lawfulness  of  that  inter- 
course is  perhaps  a  prominent  and  distinguishing  feature  of  married 
life,  but  it  is  not  the  sum  and  all  of  it.  The  higher  sentiment  and 
duty  of  unity  of  life,  interest,  sympathy,  and  companionship  have 
an  important  place  in  it,  and  the  thousand  ministrations  to  the 
physical  comforts  of  the  twain,  by  each  in  his  or  her  sphere,  in 
consideration  of  the  marriage  obligation,  and  without  ceaseless 
thought  of  pecuniary  recompense,  fills  it  up.  These  latter  factors 
may  possibly,  to  some  extent,  exist  in  other  relations  of  life,  but 
not  in  completeness.  They  are  all  necessary  to  the  perfect  mar- 
riage relation. 


136  SEPARATION  AND    DIVORCE 

My  opinion  is  that  our  statute  means  that  divorce  may  be  had 
when  substantially  all  of  these  duties  and  amenities  shall  have  been 
abandoned  by  the  guilty  party,  willfully,  continuedly,  and  obsti- 
nately, for  two  years,  and  not  until  then.  In  other  words,  the  de- 
sertion must  be  complete,  not  partial;  andj  when  the  party. accused 
remains  in  discharge  of  any  duties  which  rise  in  value  above  mere 
pretense  and  form,  the  desertion  which  the  statute  contemplates 
does  not  exist.  This  I  understand  to  be  the  meaning  accorded  to 
the  word  "desertion"  in  the  statute  of  Massachusetts.  Southwick  v. 
Southwick,  97  Mass.  327,  93  Am.  Dec.  95;  Magrath  v.  Magrath, 
103  Mass.  577,  4  Am.  Rep.  579;   Cowles  v.  Cowles,  112  Mass.  298. 

In  the  present  case,  I  find  that,  within  two  years  prior  to  the 
filing  of  the  bill,  the  defendant  did  remain  with  her  husband,  in  the 
discharge  of,  at  least,  a  substantial  portion  of  her  duty  to  him.  I 
will  sustain  the  master  in  his  conclusion,  and  dismiss  the  petition. 


PROVOST  V.  PROVOST. 
(Court  of  Chancery  of  New  Jersey,  1906.     71  N.  J.  Eq.  204,  63  Atl.  619.) 

Garrison,  V.  C.  This  is  a  petition  by  Jennie  G.  Provost  against 
her  husband  for  divorce  upon  the  ground  of  desertion.  The  parties 
were  married  October  14,  1897.  This  petition  was  filed  June  21, 
1905.  The  allegation  is  that  the  desertion  took  place  on  the  7th 
day  of  March,  1903.  The  parties  were  at  that  time  living  at  Hack- 
ensack,  N.  J.,  and  upon  that  day  the  defendant  left  Hackensack 
to  go  to  Darlington,  S.  C.  The  defendant  was  engaged  in  the  life 
insurance  business,  and  had  fallen  into  dissipated  habits,  and  un- 
doubtedly had  frequentl}^  been  a  source  of  humiliation  to  his  wife. 
Just  before  the  7th  of  March,  1903,  his  habits  led  to  his  discharge 
from  the  position  which  he  theretofore  had  held  in  the  Mutual  Life 
Insurance  Company,  and  the  money  then  due  him  from  that  com- 
pany was  paid  him.  This  money,  amounting  to  $400,  he  divided, 
giving  $200  to  his  wife  and  retaining  $200. 

There  is  not  the  slightest  evidence  that  when  he  left  for  the 
South  on  this  occasion  he  intended  to  desert  his  wife.  The  letters 
which  passed  between  the  parties  at  this  time  entirely  disprove 
any  such  contention.  They  show  that  the  parties  were  on  the  most 
intimate  terms ;  that  the  wife  was  sincerely  desirous  that  he  should 
cease  his  bad  habits  and  resume  life  with  her  again;  and  his  com- 
munications to  her  were  all  along  the  same  line.  I  do  not  think 
that  there  was  in  either  of  their  minds  at  that  time  any  thought 
that  a  desertion  or  a  permanent  separation  had  taken  place.  He  re- 
turned to  Hackensack  in  about  a  month,  and  constantly  saw  his 
wife  thereafter  for  a  long  period,  and  undoubtedly  endeavored  to 
renew  his  married  life  with  her.  She  is  a  very  self-respecting 
woman,  who  had  always  been  accustomed  to  nice  surroundings, 


DEFENSES — CONNIVANCE  137 

although  not  accustomed  to  luxuries;  and  she  undoubtedly  did  not 
wish  to  take  up  life  with  him  again  until  he  should  have  paid  all 
his  debts  and  secured  another  home  as  good  as  the  one  they  had 
left,  and  therefore  refused  to  come  and  live  with  him  under  any 
other  conditions. 

I  do  not  think  it  helpful  to  review  the  testimony  at  length,  or  to 
cite  either  from  it  or  from  the  letters.  I  fail  to  find  anywhere  in 
the  case  any  evidence  of  any  desertion  within  two  years  before  the 
filing  of  the  petition  in  this  suit.  If  the  petitioner,  abandoning  her 
original  contention  of  a  desertion  on  the  7th  of  March,  1903,  now 
contends  that  the  failure  of  the  husband  to  support  her  and  the 
children  since  his  return  to  Hackensack  in  April,  1903,  constitutes 
desertion,  she  cannot  succeed  in  this  latter  contention.  The  orig- 
inal separation  not  being  a  desertion,  it  can  only  be  turned  into 
desertion  by  one  party  in  good  faith  demanding  of  the  other  a  re- 
sumption of  the  marital  relationship  and  the  refusal  of  the  latter 
to  accede  thereto.  McAllister  v.  McAllister  (N.  J.  Ch.  1906)  62 
Atl.  1131. 

So  far  from  the  petitioner  showing  a  demand  upon  her  part  for 
a  resumption  of  the  marital  relationship  and  a  willingness  upon 
her  part  to  return  thereto,  all  of  the  evidence  shows  that  she  re- 
fused to  go  back  to  her  husband  excepting  upon  terms  formulated 
by  her.  No  citations  are  necessary  to  establish  the  doctrine  that 
a  wife  must  accept  the  situation  that  her  husband  is  able  to  main- 
tain, and  cannot  refuse  to  live  with  him  because  of  his  inability  to 
support  her  in  the  way  she  demands;  that  is  to  say,  she  cannot 
so  do  and  then  claim  that  he  has  deserted  her  because  of  his  non- 
fulfillment of  her  demands. 

The  petition  must  therefore  be  dismissed.^** 


V.  Defenses — Connivance  ** 


VIERTEL  V.  VIERTEL. 

(Kansas  Citv  Court  of  Appeals,  Missouri,  1903.    99  Mo.  App.  710,  75 

S.  W.  187.) 

Suit  by  John  F.  Viertel  against  Elizabeth  Viertel.  Decree  for 
plaintiff.    Defendant  appeals. 

Broaddus,  J.^^  *  *  *  fhg  suit  is  for  divorce,  and  was  com- 
menced on  the  9th  day  of  November,  1901.    The  allegations  in  the 

10  Affirmed  in  73  N.  J.  Eq.  418,  75  Atl.  1101  (1907),  memorandum. 

11  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
{  105. 

12  Part  of  the  opinion  is  omitted. 


138  SEPARATION  AND    DIVORCE 

petition  are  that  the  defendant  had  been  guilty  of  such  indignities 
and  unbecoming  conduct  as  to  render  plaintiff's  condition  intol- 
erable, and  that  she  had  committed  adultery  at  various  times  and 
places  during  and  since  July  1,  1900,  with  one  Evelyn  Coonfare, 
and  with  one  Chris  Parker  in  the  year  1897.  *  *  *  The  evi- 
dence went  to  show  that  the  defendant  had  committed  both  the 
acts  of  adultery  charged,  and  there  was  also  some  evidence  tending 
to  prove  the  charge  of  indignities  and  unbecoming  conduct.  The 
defendant  put  in  evidence  the  judgment  of  the  former  suit,  which 
is  reported  in  86  Mo.  App.  494.  The  court  found  that  defendant 
had  been  guilty  of  the  charges  of  adultery,  that  she  had  referred 
to  plaintiff  on  the  streets  of  Boonville  by  calling  him  a  vile  and 
approbrious  name,  and  that  she  had  spoken  of  him  and  of  his  father 
and  mother  with  contempt  and  in  a  vulgar  and  coarse  manner. 
The  court  thereupon  granted  plaintiff  a  decree  of  divorce,  with 
the  care  and  custody  of  the  minor  child,  named  Paul. 

It  is  an  admitted  fact  that  the  former  suit,  reported  in  86  Mo. 
App,  494,  was  founded  upon  a  charge  of  adultery  committed  by 
defendant  at  various  times  during  the  years  1898  and  1899  with 
one  Derrindenger,  subsequent  to  the  charge  of  adultery  in  this 
case  with  Parker,  but  prior  to  the  charge  of  adultery  with  said 
Coonfare.  The  former  suit  was  dismissed  by  the  trial  court,  and 
the  judgment  was  affirmed  here.  This  court  there  held  that  the 
acts  charged  to  have  been  committed  by  the  defendant  were  con- 
nived at  by  the  plaintiff. 

It  is  contended  by  defendant  that,  as  the  act  of  adultery  charged 
to  have  been  committed  with  said  Coonfare  occurred  since  the  one 
charged  to  have  been  committed  with  said  Derrindenger,  the  court 
having  found  that  plaintiff  connived  at  the  latter,  he  was  precluded 
under  the  law  ever  thereafter  of  obtaining  a  divorce  for  the  same 
cause.  "A  husband  who  connives  at  one  act  of  adultery  by  his 
wife  cannot  complain  of  any  subsequent  act  with  the  same  or  an- 
other participes  criminis."  2  Bishop  on  Mar.  &  Divorce,  p.  116. 
"A  husband  who  connives  at  or  assents  to  adultery  by  his  wife 
with  one  person  will  be  deemed  as  assenting  to  it  with  others,  and 
will  not  be  entitled  to  a  divorce  for  a  subsequent  act  of  adultery 
with  a  dift'erent  person."    Hedden  v.  Hedden,  21  N.  J.  Eq.  61. 

In  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424,  the 
rule  as  stated  in  1  Pomeroy  on  Eq.  Juris.  §  399,  was  adopted,  viz. : 
"The  iniquity  which  deprives  a  suitor  of  a  right  to  justice  in  a 
court  of  equity  is  not  general  iniquitous  conduct,  unconnected  with 
the  act  of  defendant  which  the  complaining  party  states  as  his 
ground  or  cause  of  action ;  but  it  must  be  evil  practice  or  wrongful 
conduct  in  the  particular  matter  or  transaction  in  respect  to  which 
judicial  protection  or  redress  is  sought."  Although  the  cOurt  rec- 
ognized the  rule  in  Hedden  v.  Hedden,  supra,  the  application  of  the 
rule  as  stated  by  Mr.  Pomeroy,  supra,  shows  that  the  court  had 


DEFENSES— CONDONATION  139 

some  misg-ivings  on  the  question.  Mr.  Nelson,  in  his  work  on  Di- 
vorce and  Separation  (volume  1,  §  486),  has  this  to  say:  "It  is 
doubtful  whether  these  rulings  will  be  followed  by  modern  courts, 
for  it  deprives  the  husband  of  the  right  of  repentance  and  reform, 
and  leaves  the  wife  to  commit  adultery  without  fear  of  divorce." 

It  is  a  very  harsh  rule,  to  say  the  least  about  it,  and  the  only  \ 
theory  upon  which  it  can  be  supported  is  that  a  husband  who  con- 
sents to  an  act  of  adultery  of  his  wife  has  fallen  so  low  in  his  moral 
nature  as  to  be  forever  unable  to  repent  and  reform.  And  it  must 
be  admitted  that  the  degradation  of  such  a  man  is  profound.  Yet 
there  are  other  conditions  in  which  he  may  be  found,  equally  de- 
plorable. Still,  it  ought  not  to  be  the  policy  of  the  law  to  cut  off 
the  husband  from  all  inducement  to  reform,  nor,  as  it  were,  to  li- 
cense the  wife  to  continue  her  shameful  practices  freed  from  all 
restraint;  and  the  rule  of  equity  that,  when  a  litigant  comes  into 
court,  it  must  be  with  clean  hands,  refers  only  to  the  matter  to 
be  litigated,  and  no  other  should  be  also  applied  to  cases  of  this 
character. 

We  feel  constrained,  for  these  reasons,  to  hold  that  plaintiff  is 
not  debarred  from  asserting  his  right  to  a  divorce  on  account  of 
the  defendant's  adulterous  conduct  with  said  Coonfare,  notwith- 
standing it  occurred  since  the  former  suit,  in  which  it  was  held  he 
had  connived  in  her  adultery  with  said  Derrindenger ;  it  not  ap- 
pearing that  he  in  any  way  was  participes  criminis.  And_it_may. 
be  said  that  such  connivance  by  the  husband  of  an  act  of  adultery 
committed  by  the  wife  with  one  person,  on  the  ground  of  which 
a  bill  for  divorce  filed  by  him  has  been  dismissed,  is  not  an  abso- 
lute bar  to  a  divorce  for  a  prior  act  of  adultery  committed  by  her 
with  another  person,  and  not  known  to  the  husband  at  the  time 
he  brought  his  former  suit.  Morrison  v.  Morrison,  142  Mass.  361, 
8  N.  E.  59.  56  Am.  Rep.  688;  Bishop  on  Mar.  &  Div.  p.  116. 
*     *     *    Affirmed." 


VI.  Same — Condonation  ** 


CLAGUE  v.  CLAGUE. 

(Supreme  Court  of  Minnesota,  1S91.     46  Minn.  461,  49  N.  W.  198.) 

Dickinson,  J.  This  is  an  action  for  a  divorce  on  the  ground  of 
cruelty.  The  decision  of  the  court  in  favor  of  the  defendant  was 
based  upon  the  fact  that,  subsequent  to  the  acts  of  cruelty  which 

18  Rehearing  denied  June  22,  1903. 

14  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  ReL  (SdEd.^ 
§§  107,  108. 


140  SEPARATION  AND  DIVORCE 

the  evidence  tended  to  establish,  the  plaintiff,  after  having  been 
for  about  10  months  absent  from  the  defendant,  voluntarily  re- 
sumed cohabitation  with  him,  and  thereby  condoned  the  previous 
conduct  complained  of.     We  are  of  the  opinion  that  the  case  jus- 
tified this  conclusion,  and  it  will  not  be  necessary  to  here  refer 
to  the  evidence  relating  to  the  defendant's  former  conduct,  nor  to 
the  refusal  of  the  court  to  receive  certain  evidence  offered  to  show 
his  misconduct.     It  is  well  established  that  the  doctrine  of  condo- 
nation is  applicable  not  alone  to  adultery,  but  as  well  to  cruelty 
in  the  marriage  relation  (2  Bish.  Mar.  &  Div.  §§  49,  50;   Gardner 
v.  Gardner,  2  Gray  [Mass.]  434;    Sullivan  v.  Sullivan,  34  Ind.  368;  . 
Phillips  V.  Phillips,  27  Wis.  252,  and  cases  cited)  ;    and  it  may  be 
implied  from  a  voluntary  resumption  of  discontinued  cohabitation, 
although  it  is  true,  as  a  general  proposition,  that  an  inference  of  , 
forgiveness  is  not  to  be  so  readily  made  against  a  wife  as  against 
a  husband.     The  circumstances  under  which  the  renewal  of  con- 
jugal  relations  was  effected  are  to  be   considered   with  discrim- 
ination, with  the  view  of  determining  whether  it  was  with  her 
free  consent,  in  which  case  an  intention  to  overlook  the  past  mis- 
conduct may  be  inferred,  or  whether,  on  the  contrary,  she  was  in- 
duced by  deception,  by  considerations  of  supposed  necessity,  or 
by  other  influences  which  deprived  her  conduct  of  the  essential 
quality  of  free  consent. 

Concerning  the  circumstances  of  this  case,  we  will  only  state 
that  alter  a  separation  of  nearly  a  year  it  came  about  that  the  par- 
ties were  occupying  separate  rooms  at  a  hotel  in  Minneapolis,  to 
which  place  the  defendant  came  on  business  from  a  distant  army 
post,  he  being  an  officer  in  the  army  of  the  United  States,  and 
that  at  length,  by  consent  of  the  plaintiff,_±hey- resumexLconjugal 
relations,  and  continued  to  occupy  the  same  room  for  several  days, 
until  the  defendant  returned  to  his  post.  They  never  afterwards 
liVed  together.  No  acts  of  cruelty  followed  this  renewal  of  marital 
relations.  The  evidence  tended  also  to  show  that  afterwards,  the 
defendant  having  been  ordered  to  a  post  in  an  eastern  city,  the 
plaintiff  intended  to  go  there  and  to  reside  with  him.  During  the 
prior  separation  of  the  parties  the  defendant  had  made  provision 
for  the  plaintiff's  support,  and  the  court  was  justified  in  concluding 
that  her  resumption  of  cohabitation  was  not  induced  by  any  actual 
or  supposed  necessity.  While  there  was  evidence  on  her  part  that 
it  was  under  a  promise  to  make  a  transfer  of  property  to  her, 
which  promise  he  did  not  fully  perform,  that  was  controverted  by 
him,  he  testifying  that  there  was  no  other  inducement  than  such 
as  arose  from  their  marriage  relation.  We  see  no  reason  to  over- 
rule the  determination  of  the  court  as  to  the  fact. 

It  is  said  that  the  defense  of  condonation  was  not  pleaded  by  the 
defendant.  It  is  enough,  however,  that,  although  not  pleaded,  it 
was  tried  as  a  contested  fact  without  objection.     Order  affirmed. 


DEFENSES — RECRIMINATION  141 


VII.  Same — Recrimination  *" 


PEASE  V.  PEASE. 

(Supreme  Court  of  Wisconsin,  ISSS.    72  Wis.  136,  39  N.  W.  133.) 

Cole,  C.  J.  The  plaintiff  and  appellant  brought  this  action  for 
a  divorce  from  the  bonds  of  matrimony  on  the  ground  of  adultery 
committed  by  the  defendant.  The  wife  denied  the  charge  of  adul- 
tery in  her  answer,  and  by  way  of  recrimination,  defense,  or  bar 
to  the  plaintiff's  action,  asked  for  a  limited  divorce  from  the  hus- 
band on  the  ground  of  cruel  and  inhuman  treatment  on  his  part. 
On  the  trial  of  the  issue  of  adultery  the  jury  found  against  the 
defendant,  and  the  court  found  the  plaintiff  guilty  of  cruel  and 
inhuman  treatment  of  the  defendant,  and  held  that  neither  party 
was  entitled  to  a  decree  of  divorce.  The  sole  question  before  us 
on  this  appeal  is  the  correctness  of  this  decision. 

Our  statute  makes  adultery  and  cruel  and  inhuman  treatment 
of  the  wife  by  the  husband  equally  grounds  of  divorce.  Rev.  St. 
1878,  §  2356.  The  statute  places  them  upon  the  same  ground,  at- 
tended by  the  same  legal  consequences.  The  cruelty  complained 
of  and  proven  were  acts  of  personal  violence  on  the  part  of  the 
husband;  his  striking  her  in  one  instance  a  severe  blow  in  the  face 
with  his  fist  while  she  was  lying  in  bed,  which  blow  caused  a  wound 
that  bled  freely,  and  left  a  bruise  for  several  days  upon  the  face. 
The  circvtit  court  also  found  other  instances  proven  of  violent  con- 
duct on  the  plaintiff's  part  towards  his  wife,  which  in  some  cases 
were  mitigated  to  some  extent  by  her  improper  and  exasperating 
behavior.  The  evidence  is  not  before  us,  but  we  must  presume  it 
fully  sustained  the  finding  of  the  court  on  the  facts.  So,  the  sim- 
ple question  presented  is,  where  it  is  shown  that  each  party  has 
been  guilty  of  an  oft'ense  which  the  statute  has  made  a  ground  for 
divorce  in  favor  of  the  other,  will  the  court  interfere  and  grant 
relief  to  either  offending  party? 

We  do  not  perceive  upon  what  logical  principle  the  court  could 
grant  redress  to  the  husband  for  the  adultery  of  the  wife  when  he 
himself  has  been  guilty  of  an  oft"ense  which  would  give  her  a  right 
to  an  absolute  divorce  were  she  without  fault.  Both  parties  have 
violated  the  marriage  contract,  and  can  the  court  look  with  more 
favor  upon  the  breach  of  one  than  the  other?  It  is  an  unquestioned 
principle  that  where  one  party  is  shown  to  have  been  guilty  of 
adultery  such  party  cannot  have  a  divorce  for  the  adultery  com- 

iB  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3tlEd.) 
S109. 


142  SEPARATION   AND    DIVORCE 

mitted  by  the  other.  Smith  v.  Smith,  19  Wis.  522.  Mr.  Bishop  says 
there  is  an  entire  concurrence  of  judicial  opinion  upon  that  point 
both  in  England  and  in  this  country,  and  that  it  makes  no  differ- 
ence which  was  the  earlier  offense;  nor  even  that  the  plaintiff's 
act  followed  a  separation  which  took  place  on  the  discovery  of 
the  adultery  of  the  defendant.  2  Bish.  Mar.  &  Div.  §  80.  In  the 
forum  of  conscience,  adultery  of  the  wife  may  be  regarded  as  a 
more  heinous  violation  of  social  duty  than  cruelty  by  the  husband. 
But  the  statute  treats  them  as  of  the  same  nature  and  same  grade 
of  delinquency.  It  is  true,  the  cruelty  of  the  husband  does  not  jus- 
tify the  adultery  of  the  wife ;  neither  would  his  own  adultery — but 
still  the  latter  has  ever  been  held  a  bar.  And  where  both  adultery 
and  cruelty  are  made  equal  offenses,  attended  with  the  same  legal 
consequences,  how  can  the  court,  in  the  mutual  controversy,  dis- 
criminate between  the  two,  and  give  one  the  preference  over  the 
other?  It  seems  to  us  that,  as  the  law  has  given  the  same  effect 
to  the  one  offense  as  the  other,  the  court  should  not  attempt  to 
distinguish  between  them,  but  treat  them  alike  and  hold  one  a  bar 
to  the  other.  The  following  authorities  enforce  this  view  of  the 
law  where  the  divorce  law  is  like  our  own:  Hall  v.  Hall,  4  Allen, 
39;  Handy  v.  Handy,  124  Mass.  394;  Nagel  v.  Nagel,  12  Mo.  53; 
Shackett  v.  Shackett,  49  Vt.  195 ;  Conant  v.  Conant,  10  Cal.  249, 
70  Am.  Dec.  717;  2  Bish.  Mar.  &  Div.  §§  78-87.  See,  also,  Adams 
V.  Adams,  17  N.  J.  Eq.  325 ;  Yeatman  v.  Yeatman,  L.  R.  1  Prob. 
&  Div.  489 ;  Lempriere  v.  Lempriere,  Id.  569.  We  therefore  think 
the  circuit  court  was  right  in  holding  upon  the  facts  that  neither 
party  was  entitled  to  a  divorce,  because  each  was  guilty  of  ^n  of- 
fense to  which  the  law  attached  the  same  legal  consequences. 

But  the  plaintiff's  counsel  contends  that  under  section  2360,  which 
provides  that  in  an  action  for  divorce  on  the  ground  of  adultery, 
although  the  fact  of  adultery  be  established,  the  court  may  deny 
a  divorce  (1)  when  the  off'ense  shall  appear  to  have  been  com- 
mitted by  the  procurement  or  with  the  connivance  of  the  plain- 
tiff; (2)  where  the  adultery  charged  shall  have  been  forgiven  by 
the  injured  party,  and  such  forgiveness  be  proved  by  express  proof 
or  by  the  voluntary  cohabitation  of  the  parties  with  knowledge  of 
the  offense ;  (3)  when  there  shall  have  been  no  express  forgive- 
ness and  voluntary  cohabitation  of  the  parties,  but  the  action  shall 
not  have  been  brought  within  three  years  after  the  discovery  by 
the  plaintiff  of  the  offense  charged.  As  the  adultery,  he  says,  was 
found  in  the  case,  but  none  of  the  facts  set  forth  in  the  above  three 
subdivisions  were  found  to  exist,  therefore  the  divorce  should  have 
been  granted.  This  provision  is  declaratory  of  the  common  law, 
and  gives  the  trial  court  discretion  to  refuse  a  divorce  for  adultery 
where  certain  things  were  proven  or  shown  to  exist.  It  might  be 
claimed,  in  view  of  the  statutory  provisions,  that  the  court  had  no 
discretion  in  the  matter  where  the  adultery  was  established,  but 


DEFENSES — RECRIMINATION  143 

was  absolutely  bound  to  grant  the  divorce,  though  there  had  been 
connivance  of  the  parties,  or  condonation,  or  the  injured  party  had 
unduly  delayed  bringing  the  action  after  a  discovery  of  the  offense. 
To  remove  all  doubt  upon  that  point  the  provision  was  enacted. 
It  was  not  intended  to  do  away  with  the  general  principle  that  one 
cannot  have  redress  for  a  breach  of  the  marriage  contract  which 
he  has  violated  by  committing  a  like  offense  as  that  of  which  he 
complains,  but  must  come  into  court  with  clean  hands.  This  prin- 
ciple still  pervades  our  law,  and  must  be  recognized. 

From  these  views  it  follows  that  the  judgment  of  the  circuit  court 
must  be  affirmed.^* 


CUSHMAN  V.  CUSHMAN. 
(Supreme  Judicial  Court  of  Massachusetts,  1907.    194  Mass.  38,  79  N.  E.  809.) 

Libel  for  divorce.  There  was  judgment  dismissing  the  libel,  and 
libelant  excepted. 

Hammond,  J.  To  a  libel  of  the  wife  for  divorce  on  the  ground 
of  adultery  the  husband  filed  an  answer  denying  the  adultery  and 
seTting  up  by  way  of  recrimination  prior  desertion  on  the  part  of 
the  wife.  At  the  trial  the  judge  found  that  the  husband  was  guilty 
of  the  adultery,  but  as  to  the  charge  of  desertion  he  did  not  find 
that  the  wife's  conduct  amounted  to  desertion,  although  he  did 
find  "that  there  was  on  her  part  such  unmindfulness  of  marital  ob- 
ligations as  to  preclude  the  granting  of  her  libel,"  and  ordered  it 
to  be  dismissed.  In  other  words,  the  wife's  charge  of  adultery  was 
sustained  but  the  liusband's  charge  of  desertion  was  not.  ' 

However  it  may  be  elsewhere,  the  rule  in  this  commonwealth 
is  that  while  the  offense  set  up  in  recrimination  need  not  be  of  the 
same  nature  as  the  one  relied  upon  in  the  libel,  yet  it  must  be  such 
as  in  law  would  be  of  itself  sufficient  ground  for  divorce.  Hall 
v.  Hall,  4  Allen,  39;  Clapp  v.  Clapp,  97  Mass.  531 ;  Watts  v.  Watts, 
160  Mass.  464,  36  N.  E.  479,  23  L.  R.  A.  187,  39  Am.  St.  Rep.  509; 
Walker  v.  Walker,  172  Mass.  82,  51  N.  E.  455,  and  cases  there 
cited.  If  upon  the  evidence  the  judge  had  found  desertion,  then 
the  dismissal  of  the  libel  would  have  been  correct;  but  he  did  not 
find  it,  and  there  is  nothing  in  the  facts  found  by  him  as  to  the  con- 
duct of  the  wife  \(rhich  estopped  her  from  a  divorce  on  the  ground 
of  the  husband's  adultery.  This  case  does  not  belong  to  the  class 
of  which  Lyster  v.  Lyster,  111  Mass.  327,  is  a  type,  where  the 
libelee  attempts  to  justify  the  charge  alleged  in  the  libel  (in  that 
case  it  was  desertion)  by  showing  misconduct  on  the  part  of  the 
libelant  which,  though  not  sufficient  in  law  to  constitute  a  ground 

16  Contra:  Zimmerman  v.  Zimmerman,  242  111.  552,  90  N.  E  192  (1909). 
holding  that,  in  a  suit  for  divorce  on  the  ground  of  adultery,  cruelty  and 
habitual  drunkenness  cannot  be  pleaded  by  way  of  recrimination. 


144  SEPARATION  AND    DIVORCE 

of  divorce  may  yet  be  sufficient  in  law  to  justify  the  act  relied  upon 
in  the  libel.    Watts  v.  Watts,  ubi  supra. 

In  the  case  before  us  a  separate  and  distinct  offense  on  the  part 
of  the  libelee,  having  no  relation  to  the  offense  charged,  is  set  up 
as  a  bar  to  the  libel.  In  such  a  case,  as  has  been  before  stated,  the 
offense  set  up  must  be  sufficient  of  itself  to  constitute  a  ground  of 
divorce.     Exceptions  sustained. 


VIII.  Extraterritorial  Effect  of  Divorce  " 


HADDOCK  V.  HADDOCK. 

(Supreme  Court  of  United  States,  1906.     201  U.  S.  562,  26  Sup.  Ct.  525,  50 

L.  Ed.  867.) 

Mr.  Justice  White  delivered  the  opinion  of  the  court.^' 

The  plaintiff  in  error  will  be  called  the  husband  and  the  defend- 
ant in   error  the  wife. 

The  wife,  a  resident  of  the  state  of  New  York,  sued  the  husband 
in  that  state  in  1899,  and  there  obtained  personal  service  upon  him. 
The  complaint  charged  that  the  parties  had  been  married  in  New 
York  in  1868,  where  they  both  resided  and  where  the  wife  contin- 
ued to  reside,  and  it  was  averred  that  the  husband,  immediately  fol- 
lowing the  marriage,  abandoned  the  wife,  and  thereafter  failed  to 
support  her,  and  that  he  was  the  owner  of  property.  A  decree  of 
separation  from  bed  and  board  and  for  alimony  was  prayed.  The 
answer  admitted  the  marriage,  but  averred  that  its  celebration  was 
procured  by  the  fraud  of  the  wife,  and  that  immediately  after  the 
marriage  the  parties  had  separated  by  mutual  consent.  It  was 
also  alleged  that  during  the  long  period  between  the  celebration 
and  the  bringing  of  this  action  the  wife  had  in  no  manner  asserted 
her  rights,  and  was  barred  by  her  laches  from  doing  so.  Besides, 
the  answer  alleged  that  the  husband  had,  in  1881,  obtained  in  a 
court  of  the  state  of  Connecticut  a  divorce  which  was  conclusive. 

At  the  trial  before  a  referee  the  judgment  roll  in  the  suit  for 
divorce  in  Connecticut  was  offered  by  the  husband  and  was  ob- 
jected to,  first,  because  the  Connecticut  court  had  not  obtained 
jurisdiction  over  the  person  of  the  defendant  wife,  as  the  notice 
of  the  pendency  of  the  petition  was  by  publication  and  she  had  not 
appeared  in  the  action ;  and,  second,  because  the  ground  upon 
which  the  divorce  was  granted,  viz.,  desertion  by  the  wife,  was 

17  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  110. 

18  Part  of  the  opinion  is  omitted. 


EXTRATERRITORIAL   EFFECT   OF   DIVORCE  145 

false.  The  referee  sustained  the  objections  and  an  exception  was 
noted.  The  judgment  roll  in  question  was  then  marked  for  iden- 
tification and  forms  a  part  of  the  record  before  us. 

Having  thus  excluded  the  proceedings  in  the  Connecticut  court, 
the  referee  found  that  the  parties  were  married  in  New  York  in 
1868,  that  the  wife  was  a  resident  of  the  state  of  New  York,  that 
after  the  marriage  the  parties  never  lived  together,  and  shortly 
thereafter  that  the  husband,  without  justifiable  cause,  abandoned 
the  wife,  and  has  since  neglected  to  provide  for  her.  The  legal 
conclusion  was  that  the  wife  was  entitled  to  a  separation  from  bed 
and  board  and  alimony  in  the  sum  of  $780  a  year  from  the  date  of 
the  judgment.  The  action  of  the  referee  was  sustained  by  the  su- 
preme court  of  the  state  of  New  York,  and  a  judgment  for  sepa- 
ration and  alimony  was  entered  in  favor  of  the  wife.  This  judg- 
ment was  afifirmed  by  the  court  of  appeals.  As,  by  the  law  of  the 
state  of  New  York,  after  the  affirmance  by  the  court  of  appeals  the 
record  was  remitted  to  the  supreme  court,  this  writ  of  error  to  that 
court  was  prosecuted.^* 

The  federal  question  is.  Did  the  court  below  violate  the  Con- 
stitution of  the  United  States  by  refusing  to  give  to  the  decree  of 
divorce  rendered  in  the  state  of  Connecticut  the  faith  and  credit 
to  which  it  was  entitled?  *  *  *  jj^  order  to  decide  whether  the 
refusal  of  the  court  to  admit  in  evidence  the  Connecticut  decree 
denied  to  that  decree  the  efficacy  to  which  it  was  entitled  under 
the  full  faith  and  credit  clause,  we  must  first  examine  the  judg- 
ment roll  of  the  Connecticut  cause  in  order  to  fix  the  precise  cir- 
cumstances under  which  the  decree  in  that  cause  was  rendered. 

Without  going  into  detail,  it  suffices  to  say  that  on  the  face  of 
the  Connecticut  record  it  appeared  that  the  husband,  alleging  that 
he  had  acquired  a  domicil  in  Connecticut,  sued  the  wife  in  that 
state  as  a  person  whose  residence  was  unknown,  but  whose  last 
known  place  of  residence  was  in  the  state  of  New  York,  at  a  place 
stated,  and  charged  desertion  by  the  wife  and  fraud  on  her  part 
in  procuring  the  marriage ;  and,  further,  it  is  shown  that  no  serv- 
ice was  made  upon  the  wife  except  by  publication  and  by  mailing 
a  copy  of  the  petition  to  her  at  her  last  known  place  of  residence 
in  the  state  of  New  York. 

With  the  object  of  confining  our  attention  to  the  real  question 
arising  from  this  condition  of  the  Connecticut  record,  we  state 
at  the  outset  certain  legal  propositions  irrevocably  concluded  by 
previous  decisions  of  this  court,  and  which  are  required  to  be  borne 
in  mind  in  analyzing  the  ultimate  issue  to  be  decided. 

First.  The  requirement  of  the  Constitution  is  not  that  some,  but 
that  full,  faith  and  credit  shall  be  given  by  states  to  the  judicia-1 

19  For  the  decision  below,  see  178  N.  Y.  557,  70  N.  E.  1099  (1904). 
COOLEY  P.&  D.Rel.— 10 


146  SEPARATION  AND    DIVORCE 

decrees  of  other  states.  That  is  to  say,  where  a  decree  rendered  in 
one  state  is  embraced  by  the  full  faith  and  credit  clause,  that  con- 
stitutional provision  commands  that  the  other  states  shall  give 
to  the  decree  the  force  and  effect  to  which  it  was  entitled  in  the 
state  where  rendered.  Harding  v.  Harding,  198  U.  S.  317,  49  L. 
Ed.  1066,  25  Sup.  Ct.  679. 

Second.  Where  a  personal  judgment  has  been  rendered  in  the 
^courts  of  a  state  against  a  nonresident  merely  upon  constructive 
■service,  and,  therefore,  without  acquiring  jurisdiction  over  the  per- 
son of  the  defendant,  such  judgment  may  not  be  enforced  in  an- 
other state  in  virtue  of  the  full  faith  and  credit  clause.     Indeed,  a 
personal  judgment  so  rendered  is,  by  operation  of  the  due  process 
i  clause  of  the  Fourteenth  amendment,  void  as  against  the  nonres- 
i  ident,  even  in  the  state  where  rendered ;   and,  therefore,  such  non- 
!  resident,  in  virtue  of  rights  granted  by  the  Constitution  of  the 
^United  States,  may  successfully  resist,  even  in  the   state  where 
•tendered,  the  enforcement  of  such  a  judgment.    Pennoyer  v.  Neff, 
V^U.  S.  714,  24  L.  Ed.  565.     *    *    * 

Third.  The  principles,  however,  stated  in  the  previous  propo- 
sition, are  controlling  only  as  to  judgments  in  personam,  and  do 
not  relate  to  proceedings  in  rem.  That  is  to  say,  in  consequence 
of  the  authority  wEich  government  possesses  over  things  within  its 
borders,  there  is  jurisdiction  in  a  court  of  a  state  by  a  proceeding 
in  rem,  after  the  giving  of  reasonable  opportunity  to  the  owner 
to  defend,  to  affect  things  within  the  jurisdiction  of  the  court,  even 
although  jurisdiction  is  not  directly  acquired  over  the  person  of 
the  owner  of  the  thing.     Pennoyer  v.  Neff,  supra. 

Fourth.  The  general  rule  stated  in  the  second  proposition  is, 
moreover,  limited  by  the  inherent  power  which  all  governments 
must  possess  over  t^£-Jaaxriage,X?Jation,  its  formation  and  disso- 
lution, as  regards  their  own  citizens.  From  this  exceptipn  it  results 
that  where  a  court  of  one  state,  conformably  to  the  laws  of  such 
state,  or  the  state,  through  its  legislative  department,  has  acted  con- 
cerning the  dissolution  of  the  marriage  tie,  as  to  a  citizen  of  that 
state,  such  action  is  binding  in  that  state  as  to  such  citizen,  and 
the  validity  of  the  judgment  may  not  therein  be  questioned  on  the 
ground  that  the  action  of  the  state  in  dealing  with  its  own  citizen 
concerning  the  marriage  relation  was  repugnant  to  the  due  process 
clause  of  the  Constitution.  Maynard  v.  Hill,  125  U.  S.  190,  31  L. 
Ed.  654,  8  Sup.  Ct.  723.     *    *    * 

Fifth.  It  is  no  longer  open  to  question  that  where  husband  and 
wife  are  domiciled  in  a  state  there  exists  jurisdiction  in  such  state, 
for  good  cause,  to  enter  a  decree  of  divorce  which  will  be  entitled 
to  enforcement  in  another  state  by  virtue  of  the  full  faith  and  credit 
clause.  It  has,  moreover,  been  decided  that  where  a  bona  fide 
domicil  has  been  acquired  in  a  state  by  either  of  the  parties  to  a 
marriage,  and  a  suit  is  brought  by  the  domiciled  party  in  such 


EXTRATERRITORIAL   EFFECT   OF   DIVORCE  147 

State  for  divorce,  the  courts  of  that  state,  if  they  acquire  personal 
jurisdiction  also  of  the  other  party,  have  authority  to  enter  a  de- 
cree of  divorce,  entitled  to  be  enforced  in  every  state  by  the  full 
faith  and  credit  clause.  Cheever  v.  Wilson,  9  Wall.  108,  19  L. 
Ed.  604. 

Sixth.  Where  the  domicil  of  matrimony  was  in  a  particular  state, 
and  the  husband  abandons  his  wife  and  goes  into  another  state 
in  order  to  avoid  his  marital  obligations,  such  other  state  to  which 
the  husband  has  wrongfully  fled  does  not,  in  the  nature  of  things, 
become  a  new  domicil  of  matrimony,  and,_therefore,  is  not  to  be  ! 
^.eated  as  the  actual  or  constructive  domicil  of  the  wife;  hence,  the 
place  where  the  wife  was  domiciled  when  so  abandoned  constitutes 
her  legal  domicil  until  a  new  actual  domicil  be  by  her  elsewhere 
acquired.  This  was  clearlv  expressed  in  Barber  v.  Barber,  21  How. 
582,  16  L.  Ed.  226.     *    *    * 

Seventh.  So  also  it  is  settled  that  where  the  domicil  of  a  husband 
is  in  a  particular  state,  and  that  state  is  also  the  domicil  of  matri- 
mony, the  courts  of  such  state  having  jurisdiction  over  the  hus- 
band may,  in  virtue  of  the  duty  of  the  wife  to  be  at  the  matri- 
monial domicil,  disregard  an  unjustifiable  absence  therefrom,  and 
treat  the  wife  as  having  her  domicil  in  the  state  of  the  matrimo- 
nial domicil  for  the  purpose  of  the  dissolution  of  the  marriage, 
and  as  a  result  have  power  to  render  a  judgment  dissolving  the 
marriage  which  will  be  binding  upon  both  parties,  and  will  be  en- 
titled to  recognition  in  all  other  states  by  virtue  of  the  full  faith 
and  credit  clause.  Atherton  v.  Atherton,  181  U.  S.  155,  45  L.  Ed. 
794,  21  Sup.  Ct.  544. 

Coming  to  apply  these  settled  propositions  to  the  case  before  us, 
^.  three  things  are  beyond  dispute:  (a)  In  view  of  the  authority 
which  government  possesses  over  the  marriage  relation,  no  ques- 
tion can  arise  on  this  record  concerning  the  right  of  the  state  of 
Connecticut  within  its  borders  to  give  effect  to  the  decree  of  di- 
vorce rendered  in  favor  of  the  husband  by  the  courts  of  Connecti- 
cut, he  being  at  the  time  when  the  decree  was  rendered  domiciled 
in  that  state,  (b)  As  New  York  was  the  domicil  of  the  wife  and 
the  domicil  of  matrimony,  from  which  the  husband  fled  in  disre- 
gard of  his  duty,  it  clearly  results  from  the  sixth  proposition  that 
the  domicil  of  the  wife  continued  in  New  York,  (c)  As  then  there 
can  be  no  question  that  the  wife  was  not  constructively  present  in 
Connecticut  by  virtue  of  a  matrimonial  domicil  in  that  state,  and 
was  not  there  individually  domiciled,  and  did  not  appear  in  the 
divorce  cause,  and  was  only  constructively  served  with  notice  of 
the  pendency  of  that  action,  it  is  apparent  that  the  Connecticut 
court  did  not  acquire  jurisdiction  over  the  wife  within,  the  fifth 
and  seventh  propositions;  that  is,  did  not  acquire  such  jurisdiction 
by  virtue  of  the  domicil  of  the  wife  within  the  state  or  as  the  re- 
sult of  personal  service  upon  her  within  its  borders. 


148  SEPARATION  AND  DIVORCE 

These  subjects  being  thus  eliminated,  tjie  case  reduces  itself  to 
this:  Whether  the  Connecticut  court,  in  virtue  alone  of  the  dom- 
Tcil  of  the  husband  in  that  state,  had  jurisdiction  to  render  a  de- 
cree against  the  wife  under  the  circumstances  stated,  which  was 
entitled  to  be  enforced  in  other  states  in  and  by  virtue  of  the  full 
faith  and  credit  clause  of  the  Constitution.  In  other  words,  the 
final  question  is  whether,  to  enforce  in  another  jurisdiction  the  Con- 
necticut decree,  would  not  be  to  enforce  in  one  state  a  personal 
judgment  rendered  in  another  state  against  a  defendant  over  whom 
the  court  of  the  state  rendering  the  judgment  had  not  acquired 
jurisdiction?  Otherwise  stated,  the  question  is  this:  Is  a  proceed- 
ing for  divorce  of  such  an  exceptional  character  as  not  to  come 
within  the  rule  limiting  the  authority  of  a  state  to  persons  within 
its  jurisdiction,  but,  on  the  contrary,  because  of  the  power  which 
government  may  exercise  over  the  marriage  relation,  constitutes 
an  exception  to  that  rule,  and  is  therefore  embraced  either  within 
the  letter  or  spirit  of  the  doctrine  stated  in  the  third  or  fourth  prop- 
ositions? 

Before  reviewing  the  authorities  relied  on  to  establish  that  a  di- 
vorce proceeding  is  of  the  exceptional  nature  indicated,  we  propose 
first  to  consider  the  reasons  advanced  to  sustain  the  contention. 
In  doing  so,  however,  it  must  always  be  borne  in  mind  that  it  is^ 
elementary  that  where  the  full  faith  and  credit  clause  of  the  Con- 
stitution is  invoked  to  compel  the  enforcement  in  one  state  of  a 
decree  rendered  in  another,  the  question  of  the  jurisdiction  of  the 
court  by  which  the  decree  was  rendered  is  open  to  inquiry.  And  if, 
tliere  was  no  jurisdiction,  either  of  the  subject-matter  or  of  the 
person  of  the  defendant,  the  courts  of  another  state  are  not  re- 
quired, by  virtue  of  the  full  faith  and  credit  clause  of  the  Constitu- 
tion, to  enforce  such  decree.  National  Exch.  Bank  v.  Wiley,  195 
U.  S.  259,  269,  49  L.  Ed.  184,  190,  25  Sup.  Ct.  70,  and  cases  cited. 

I.  The  wide  scope  of  the  authority  which  government  possesses 
over  the  contract  of  marriage  and  its  dissolution  is  the  basis  upon 
which  it  is  argued  that  the  domicil  within  one  state  of  one  party 
to  the  marriage  gives  to  such  a  state  jurisdiction  to  decree  a  dis- 
solution of  the  marriage  tie  which  will  be  obligatory  in  all  the 
other  states  by  force  of  the  full  faith  and  credit  clause  of  the  Con- 
stitution. But  the  deduction  is  destructive  of  the  premise  upon 
which  it  rests.  This  becomes  clear  when  it  is  perceived  that  if 
one  government,  because  of  its  authority  over  its  own  citizens,  has 
the  right  to  dissolve  the  marriage  tie  as  to  the  citizen  of  another 
jurisdiction,  it  must  follow  that  no  government  possesses  as  to  its 
own  citizens,  power  over  the  marriage  relation  and  its  dissolution. 
For  if  it  be  that  one  government,  in  virtue  of  its  authority  over 
marriage,  may  dissolve  the  tie  as  to  citizens  of  another  govern- 
ment, other  governments  would  have  a  similar  power,  and  hence 
the  right  of  every  government  as  to  its  own  citizens  might  be  ren- 


EXTRATERRITORIAL    EFFECT   OF    DIVORCE  149 

dered  nugatory  by  the  exercise  of  the  power  which  every  other 
government  possessed. 

To  concretely  illustrate :     If  the  fact  be  that  where  persons  are 
married  in  the  state  of  New  York  either  of  the  parties  to  the  mar- 
riage may,  in  violation  of  the  marital  obligations,  desert  the  other 
and  go  into  the  state  of  Connecticut,  there  acquiring  a  domicil,  and 
procure   a  dissolution   of  the  marriage  which  would   be  binding 
in  the  state  of  New  York  as  to  the  party  to  the  marriage  there 
domiciled,  it  would  follow  that  the  power  of  the   state  of  New 
York  as  to  the  disssolution  of  the  marriage  as  to  its  domiciled 
citizen  would  be  of  no  practical  avail.     And  conversely,  the  like 
result  would  follow  if  the  marriage  had  been  celebrated  in  Con- 
necticut and  desertion  had  been  from  that  state  to  New  York,  and 
consequently  the  decree  of  divorce  had  been  rendered  in  New  York. 
Even  a  superficial  analysis  will  make  this  clear.     Under  the  rule 
contended  for  it  would  follow  that  the  states  whose  laws  were  the 
most  lax  as  to  length  of  residence  required  for  domicil,  as  to  causes 
for  divorce  and  to  speed  of  procedure  concerning  divorce,  would 
in  effect  dominate  all  the  other  states.    In  other  words,  any  person 
who  was  married  in  one  state  and  who  wished  to  violate  the  mari- 
tal obligations,  would  be  able,  by  following  the  lines  of  least  resist- 
ance, to  go  into  the  state  whose  laws  were  the  most  lax,  and  there 
avail  of  them  for  the  purpose  of  the  severance  of  the  marriage  tie 
and  the  destruction  of  the  rights  of  the  other  party  to  the  mar- 
riage contract,  to  the  overthrow  of  the  laws  and  the  public  policy 
of  the  other  states.    Thus  the  argument  comes  necessarily  to  this — 
that  to  preserve  the  lawful  authority  of  all  the  states  over  marriage 
it  is  essential  to  decide  that  all  the  states  have  such  authority  only 
at  the  sufferance  of  the  other  states.     *     *     * 
"^TI.  It  is  urged  that  the  suit  for  divorce  was  a  proceeding  in  rem, 
and,  therefore,  the  Connecticut  court  had  complete  jurisdiction  to 
enter  a  decree  as  to  the  res,  entitled  to  be  enforced  in  the  state 
of  New  York.     But  here  again  the  argument  is  contradictory.     It 
rests  upon  the  theory  that  jurisdiction  in   Connecticut  depended 
upon  the  domicil  of  the  person  there  suing,  and  yet  attributes  to 
the  decree  resting  upon  the  domicil  of  one  of  the  parties  alone  a 
force  and  effect  based  upon  the  theory   that  a  thing  within  the 
jurisdiction  of  Connecticut  was  the  subject-matter  of  the  contro- 
versy.    But  putting  this  contradiction  aside,  what,  may  we  ask, 
was  the  res  in  Connecticut?    Certainly  it  cannot  in  reason  be  said 
that  it  was  the  cause  of  action  or  the  mere  presence  of  the  per- 
son of  the  plaintiff  within  the  jurisdiction.    The  only  possible  the- 
ory, then,  upon  which  the  proposition  proceeds,  must  be  that  the 
res  in  Connecticut,  from  which  the  jurisdiction  is  assumed  to  have 
arisen,  was  the  marriage  relation.     But  as  the  marriage  was  cele- 
brated in  New  York  between  citizens  of  that  state,  it  must  be  ad- 
mitted under  the  hypothesis  stated,  that  before  the  husband  de- 


150  SEPARATION  AND    DIVORCE 

serted  the  wife  in  New  York  the  res  was  in  New  York,  and  not  in 
Connecticut.  As  the  husband,  after  wrongfully  abandoning  the 
wife  in  New  York,  never  established  a  matrimonial  domicil  in  Con- 
necticut, it  cannot  be  said  that  he  took  with  him  the  marital  rela- 
tion from  which  he  fled  to  Connecticut.  Conceding,  however,  that 
he  took  with  him  to  Connecticut  so  much  of  the  marital  rela- 
tion as  concerned  his  individual  status,  it  cannot  in  reason  be  said 
that  he  did  not  leave  in  New  York  so  much  of  the  relation  as  per- 
tained to  the  status  of  the  wife.  From  any  point  of  view,  then, 
under  the  proposition  referred  to,  jf_th_e  marriage  relation  be  treated 
as  the  res,  it  follows  that  it  was  divisible,  and  therefore  there  was 
a  res  in  the  state  of  New  York  and  one  in  the  state  of  Connecti- 
cut. Thus  considered,  it  is  clear  that  the  power  of  one  state  did 
not  extend  to  affecting  the  thing  situated  in  another  state.     *     *     * 

Nor  is  the  conclusive  force  of  the  view  which  we  have  stated 
been  met  by  the  suggestion  that  the  res  was  indivisible,  and  there- 
fore was  wholly  in  Connecticut  and  wholly  in  New  York,  for  this 
amounts  but  to  saying  that  the  same  thing  can  be  at  one  and  the 
same  time  in  different  places.  Further,  the  reasoning  above  ex- 
pressed disposes  of  the  contention  that,  as  the  suit  in  Connecticut 
involved  the  status  of  the  husband,  therefore  the  courts  of  that  state 
had  the  power  to  determine  the  status  of  the  nonresident  wife  by 
a  decree  which  had  obligatory  force  outside  of  the  state  of  Con- 
necticut. Here,  again,  the  argument  comes  to  this — that,  because 
the  state  of  Connecticut  had  jurisdiction  to  fix  the  status  of  one 
domiciled  within  its  borders,  that  state  also  had  the  authority  to 
oust  the  state  of  New  York  of  the  power  to  fix  the  status  of  a  per- 
son who  was  undeniably  subject  to  the  jurisdiction  of  that  state. 

III.  It  is  urged  that  whilst  marriage  is,  in  one  aspect,  a  con- 
tract, it  is  nevertheless  a  contract  in  which  society  is  deeply  inter- 
ested, and,  therefore,  government  must  have  the  power  to  determine 
whether  a  marriage  exists  or  to  dissolve  it,  and  hence  the  Con- 
necticut court  had  jurisdiction  of  the  relation  and  the  right  to  dis- 
solve it,  not  only  as  to  its  own  citizen,  but  as  to  a  citizen  of  New 
York  who  was  not  subject  to  the  jurisdiction  of  the  state  of  Con- 
necticut. The  proposition  involves  in  another  form  of  statement 
the  non  sequitur  which  we  have  previously  pointed  out;  that  is, 
that  because  government  possesses  power  over  marriage,  therefore 
the  existence  of  that  power  must  be  rendered  unavailing. 

Nor  is  the  contention  aided  by  the  proposition  that  because  it  is 
impossible  to  conceive  of  the  dissolution  of  the  marriage  as  to 
one  of  the  parties  in  one  jurisdiction  without,  at  the  same  time, 
saying  that  the  marriage  is  dissolved  as  to  both  in  every  other 
jurisdiction,  therefore  the  Connecticut  decree  should  have  obliga- 
tory effect  in  New  York  as  to  the  citizen  of  that  state.  For,  again, 
by  a  change  of  form  of  statement,  the  same  contention  which  we 
have  disposed  of  is  reiterated.    Besides,  the  proposition  presupposes 


EXTRATERRITORIAL   EFFECT   OP   DIVORCE  151 

that  because,  in  the  exercise  of  its  power  over  its  own  citizens, 
a  state  may  determine  to  dissolve  the  marriage  tie  by  a  decree 
which  is  efficacious  within  its  borders,  therefore  such  decree  is  in 
all  cases  binding  in  every  other  jurisdiction.  As  we  have  pointed 
out  at  the  outset,  it  does  not  follow  that  a  state  may  not  exert  its 
power  as  to  one  within  its  jurisdiction  simply  because  such  exer- 
cise of  authority  may  not  be  extended  beyond  its  borders  into  the 
jurisdiction  and  authority  of  another  state. 

The  distinction  was  clearly  pointed  out  in  Blackinton  v.  Black- 
inton,  141  Mass.  432,  5  N.  E.  830,  55  Am.  Rep.  484.  In  that  case 
the  parties  were  married  and  lived  in  Massachusetts.  The  hus- 
band abandoned  the  wife  without  cause  and  became  domiciled  in 
New  York.  The  wife  remained  at  the  matrimonial  domicil  in  Mas- 
sachusetts and  instituted  a  proceeding  to  prohibit  her  husband  from 
imposing  any  restraint  upon  her  personal  liberty  and  for  separate 
maintenance.  Service  was  made  upon  the  husband  in  New  York. 
The  court,  recognizing  fully  that  under  the  circumstances  disclosed 
the  domicil  of  the  husband  was  not  the  domicil  of  the  wife,  con- 
cluded that,  under  the  statutes  of  Massachusetts,  it  had  authority 
to  grant  the  relief  prayed,  and  was  then  brought  to  determine 
whether  the  decree  ought  to  be  made,  in  view  of  the  fact  that  such 
decree  might  not  have  extraterritorial  force.  But  this  circumstance 
was  held  not  to  be  controlling,  and  the  decree  was  awarded.    *    *    * 

IV,  The  contention  that  if  the  power  of  one  state  to  decree  a 
dissolution  of  a  marriage  which  would  be  compulsory  upon  the 
other  states  be  limited  to  cases  where  both  parties  are  subject  to 
the  jurisdiction,  the  right  to  obtain  a  divorce  could  be  so  hampered 
and  restricted  as  to  be  in  effect  impossible  of  exercise,  is  but  to 
insist  that  in  order  to  favor  the  dissolution  of  marriage  and  to  cause 
its  permanency  to  depend  upon  the  mere  caprice  or  wrong  of  the 
parties,  there  should  not  be  applied  to  the  right  to  obtain  a  divorce 
those  fundamental  principles  which  safeguard  the  exercise  of  the 
simplest  rights.  In  other  words,  the  argument  but  reproduces  the 
fallacy  already  exposed,  which  is,  that  one  state  must  be  endowed 
with  the  attribute  of  destroying  the  authority  of  all  the  others  con- 
cerning the  dissolution  of  marriage  in  order  to  render  such  disso- 
lution easy  of  procurement. 

But  even  if  the  true  and  controlling  principles  be  for  a  moment 
put  aside  and  mere  considerations  of  inconvenience  be  looked  at, 
it  would  follow  that  the  preponderance  of  inconvenience  would  be 
against  the  contention  that  a  state  should  have  the  power  to  exert 
its  authority  concerning  the  dissolution  of  marriage  as  to  those 
not  amenable  to  its  jurisdiction.  By  the  application  of  that  rule 
each  state  is  given  the  power  of  overshadowing  the  authority  of 
all  the  other  states,  thus  causing  the  marriage  tie  to  be  less  pro- 
tected than  any  other  civil  obligation,  and  this  to  be  accomplished 
by  destroying  individual  rights  without  a  hearing  and  by  tribu- 


152  SEPARATION   AND    DIVORCE 

nals  having  no  jurisdiction.  Further,  the  admission  that  jurisdic- 
tion in  the  courts  of  one  state'  over  one  party  alone  was  the  test 
of  the  right  to  dissolve  the  marriage  tie  as  to  the  other  party,  al- 
though domiciled  in  another  state,  w^ould  at  once  render  such  test 
impossible  of  general  application.  In  other  words,  the  test,  if  ad- 
mitted, would  destroy  itself.  This  follows,  since  if  that  test  were 
the  rule,  each  party  to  the  marriage  in  one  state  would  have  a  right 
to  acquire  a  domicil  in  a  different  state  and  there  institute  proceed- 
ings for  divorce.  It  would  hence  necessarily  arise  that  domicil 
would  be  no  longer  the  determinative  criterion,  but  the  mere  race 
of  diligence  between  the  parties  in  seeking  different  forums  in  other 
states  or  the  celerity  by  which  in  such  states  judgments  of  divorce 
might  be  procured  would  have  to  be  considered  in  order  to  decide 
which  forum  was  controlling. 

On  the  other  hand,  the  denial  of  the  power  to  enforce  in  another 
state  a  decree  of  divorce  rendered  against  a  person  who  was  not 
subject  to  the  jurisdiction  of  the  state  in  which  the  decree  was  ren- 
dered obviates  all  the  contradictions  and  inconveniences  which  are 
above  indicated.  It  leaves  uncurtailed  the  legitimate  power  of  all 
the  states  over  a  subject  peculiarly  within  their  authority,  and  thus 
not  only  enables  them  to  maintain  their  public  policy,  but  also  to 
protect  the  individual  rights  of  their  citizens.  It  does  not  deprive 
a  state  of  the  power  to  render  a  decree  of  divorce  susceptible  of 
being  enforced  within  its  borders  as  to  the  person  within  the  juris- 
diction, and  does  not  debar  other  states  from  giving  such  effect  to 
a  judgment  of  that  character  as  they  may  elect  to  do  under  mere 
principles  of  state  comity.  It  causes  the  full  faith  and  credit  clause 
of  the  Constitution  to  operate  upon  decrees  of  divorce  in  the  re- 
spective states  just  as  that  clause  operates  upon  other  rights — that 
is,  it  compels  all  the  states  to  recognize  and  enforce  a  judgment 
of  divorce  rendered  in  other  states  where  both  parties  were  sub- 
ject to  the  jurisdiction  of  the  state  in  which  the  decree  was  ren- 
dered, and  it  enables  the  states  rendering  such  decrees  to  take  into 
view,  for  the  purpose  of  the  exercise  of  their  authority,  the  ex- 
istence of  a  matrimonial  domicil  from  which  the  presence  of  a  party 
not  physically  present  within  the  borders  of  a  state  may  be  con- 
structively found  to  exist.     *     *     * 

As  respects  the  decisions  of  this  court:  We  at  once  treat  as 
inapposite,  and  therefore  unnecessary  to  be  here  specially  reviewed, 
those  holding  (a)  that  where  the  domicil  of  a  plaintiff  in  a  divorce 
cause  is  in  the  state  where  the  suit  was  brought,  and  the  defend- 
ant appears  and  defends,  as  both  parties  are  before  the  court,  there 
is  power  to  render  a  decree  of  divorce  which  will  be  entitled  in 
other  states  to  recognition  under  the  full  faith  and  credit  clause 
(Cheever  v.  Wilson,  supra)  ;  (b)  that,  as  distinguished  from  legal 
domicil,  mere  residence  within  a  particular  state  of  the  plaintiff  in 
a  divorce  cause  brought  in  a  court  of  such  state  is  not  sufficient  to 


EXTRATERRITORIAL    EFFECT   OF   DIVORCE  153 

confer  jurisdiction  upon  such  court  to  dissolve  the  marriage  rela- 
tion existing  between  the  plaintiff  and  a  nonresident  defendant 
(Andrews  v.  Andrews,  188  U.  S.  14,  47  L.  Ed.  366,  23  Sup.  Ct.  237; 
Streitwolf  V.  Streitwolf,  181  U.  S.  179,  45  L.  Ed.  807,  21  Sup.  Ct.  553  ; 
Bell  V.  Bell,  181  U.  S.  175,  45  L.  Ed.  804,  21  Sup.  Ct.  551).  This 
brings  us  to  again  consider  a  case  heretofore  referred  to,  principally 
relied  upon  as  sustaining  the  contention  that  the  domicil  of  one 
party  alone  is  sufficient  to  confer  jurisdiction  upon  a  judicial  tribu- 
nal to  render  a  decree  of  divorce  having  extraterritorial  effect,  viz., 
Atherton  v.  Atherton,  181  U.  S.  155,  45  L.  Ed.  794,  21  Sup.  Ct.  544. 

The  decision  in  that  case,  however,  as  we  have  previously  said, 
was  expressly  placed  upon  the  ground  of  matrimonial  domicil.  This 
is  apparent  from  the  following  passage,  which  we  excerpt  from  the 
opinion,  at  181  U.  S.  171,  45  L.  Ed.  803,  and  21  Sup.  Ct.  550:  "This 
case  does  not  involve  the  validity  of  a  divorce  granted,  on  construc- 
tive service,  by  the  court  of  a  state  in  which  only  one  of  the  par- 
ties ever  had  a  domicil ;  nor  the  question  to  what  extent  the  good 
faith  of  the  domicil  may  be  afterwards  inquired  into.  In  this  case 
the  divorce  in  Kentucky  was  by  the  court  of  the  state  which  had 
always  been  the  undoubted  domicil  of  the  husband,  and  which 
was  the  only  matrimonial  domicil  of  the  husband  and  wife.  The 
single  question  to  be  decided  is  the  validity  of  that  divorce,  granted 
after  such  notice  had  been  given  as  was  required  by  the  statutes 
of  Kentucky." 

The  contention,  therefore,  that  the  reasoning  of  the  opinion  dem- 
onstrates that  the  domicil  of  one  of  the  parties  alone  was  contem- 
plated as  being  sufficient  to  found  jurisdiction,  but  insists  that  the 
case  decided  a  proposition  which  was  excluded  in  unmistakable 
language.  But,  moreover,  it  is  clear,  when  the  facts  which  were 
involved  in  the  Atherton  Case  are  taken  into  view,  that  the  case 
could  not  have  been  decided  merely  upon  the  ground  of  the  domicil 
of  one  of  the  parties,  because  that  consideration  alone  would  have 
aft'orded  no  solution  of  the  problem  which  the  case  presented.  The 
salient  facts  were  these : 

The  husband  lived  in  Kentucky,  married  a  citizen  of  New  York, 
and  the  married  couple  took  up  their  domicil  at  the  home  of  the 
husband  in  Kentucky,  where  they  continued  to  reside  and  where 
children  were  born  to  them.  The  wife  left  the  matrimonial  domicil 
and  went  to  New  York.  The  husband  sued  her  in  Kentucky  for  a 
divorce.  Before  the  Kentucky  suit  merged  into  a  decree  the  wife, 
having  a  residence  in  New  York,  sufficient,  under  ordinary  circum- 
stances, to  constitute  a  domicil  in  that  state,  sued  the  husband  in 
the  courts  of  New  York  for  a  limited  divorce.  Thus  the  two  suits, 
one  by  the  husband  against  the  wife  and  the  other  by  the  wife 
against  the  husband,  were  pending  in  the  respective  states  at  the 
same  time.  The  husband- obtained  a  decree  in  the  Kentucky  suit 
before  the  suit  of  the  wife  had  been  determined,  and  pleaded  such 


154  SEPARATION  AND    DIVORCE 

decree  in  the  suit  brought  by  the  wife  in  New  York.  The  New 
York  court,  however,  refused  to  recognize  the  Kentucky  decree, 
and  the  case  came  here,  and  this  court  decided  that  the  courts  of 
New  York  were  bound  to  give  effect  to  the  Kentucky  decree  by 
virtue  of  the  full  faith  and  credit  clause. 

Under  these  conditions  it  is  clear  that  the  case  could  not  have 
been  disposed  of  on  the  mere  ground  of  the  individual  domicil  of 
the  parties,  since  upon  that  hypothesis,  even  if  the  efficacy  of  the 
individual  domicil  had  been  admitted,  no  solution  would  have  been 
thereby  afforded  of  the  problem  which  would  have  risen  for  deci- 
sion, that  problem  being  which  of  the  two  courts  wherein  the  con- 
flicting proceedings  were  pending  had  the  paramount  right  to  enter 
a  binding  decree.  Having  disposed  of  the  case  upon  the  principle 
of  matrimonial  domicil,  it  cannot  in  reason  be  conceived  that  the 
court  intended  to  express  an  opinion  upon  the  soundness  of  the 
theory  of  individual  and  separate  domicil  which,  isolatedly  consid- 
ered, was  inadequate  to  dispose  of,  and  was,  therefore,  irrelevant 
to,  the  question  for  decision.     *     *     * 

Deducing  the  law  of  the  several  states  from  the  rulings  of  their 
courts  of  last  resort  which  we  have  just  reviewed,  and  ignoring 
mere  minor  differences,  the  law  of  such  states  is  embraced  within 
one  or  the  other  of  the  following  headings : 

(a)  States  where  the  power  to  decree  a  divorce  is  recognized, 
based  upon  the  mere  domicil  of  the  plaintiff,  although  the  decree 
when  rendered  will  be  but  operative  within  the  borders  of  the  state, 
wholly  irrespective  of  any  force  which  may  be  given  such  decree 
in  other  states.  Under  this  heading  all  of  the  states  are  embraced 
with  the  possible  exception  of  Rhode  Island. 

(b)  States  which  decline,  even  upon  principles  of  comity,  to  rec- 
ognize and  enforce  as  to  their  own  citizens,  within  their  own  bor- 
ders, decrees  of  divorce  rendered  in  other  states,  when  the  court 
rendering  the  same  had  jurisdiction  over  only  one  of  the  parties. 
Under  this  heading  are  embraced  Massachusetts,  New  Jersey  (with 
the  qualification  made  by  the  decision  in  Felt  v.  Felt,  59  N.  J.  Eq. 
606,  45  Atl.  105,  49  Atl.  1071,  47  L.  R.  A.  546,  83  Am.  St.  Rep.  612), 
and  New  York. 

(c)  States  which,  whilst  giving  some  effect  to  decrees  of  divorce 
rendered  against  its  citizens  in  other  states  where  the  court  had 
jurisdiction  of  the  plaintiff  alone,  either  place  the  effect  given  to 
such  decrees  upon  the  principle  of  state  comity  alone,  or  make  such 
limitations  upon  the  effect  given  to  such  decree  as  indubitably  es- 
tablishes that  the  recogniton  given  is  a  result  merely  of  state  com- 
ity. As  the  greater  includes  the  less,  this  class  of  course  embraces 
the  cases  under  the  previous  heading.  It  also  includes  the  states 
of  Alabama,  Maine,  Ohio,  and  Wisconsin. 

(d)  Cases  which,  although  not  actually  so  deciding,  yet  lend 
themselves  to  the  view  that  ex  parte  decrees  of  divorce  rendered 


EXTRATERRITORIAL    EFFECT   OP   DIVORCE  155 

in  other  states  would  receive  recognition  by  virtue  of  the  due  faith 
and  credit  clause.  And  this  class  embraces  Missouri  and  Rhode 
Island. 

Coming  to  consider,  for  the  purpose  of  classification,  the  de- 
cided cases  in  other  states  than  those  previously  reviewed,  which 
have  been  called  to  our  attention,  the  law  of  such  states  may  be 
said  to  come  under  one  or  the  other  of  the  foregoing  headings,  as 
follows: 

Proposition  (a)  embraces  the  law  of  all  the  states,  since  in  the 
decision  of  no  state  is  there  an  intimation  expressing  the  exception 
found  in  the  Rhode  Island  case  [Ditson  v.  Ditson,  4  R.  I.  87]  which 
caused  us  to  exclude  that  state  from  this  classification. 

Under  proposition  (b)  comes  the  law  of  the  states  of  Pennsyl- 
vania, Vermont,  and  South  Carolina.  A  line  of  decisions  of  the 
state  of  North  Carolina  would  also  cause  us  to  embrace  the  law  of 
that  state  within  this  classification,  but  for  a  doubt  engendered  in 
our  minds  as  to  the  effect  of  the  law  of  North  Carolina  on  the  sub- 
ject, resulting  from  suggestions  made  by  the  North  Carolina  court 
in  the  opinion  in  Bidwell  v.  Bidwell,  139  N.  C.  402,  52  S.  E.  58, 
2  L.  R.  A.  (N.  S.)  324,  111  Am.  St.  Rep.  797. 

Proposition  (c)  embraces  the  law  of  Kansas,  Louisiana,  Mary- 
land, Michigan,  Minnesota,  Nebraska,  and  New  Hampshire.  And 
it  is  pertinent  here  to  remark  that  in  Michigan  (3  Comp.  Laws 
Mich.  1897,  §  8621,  c.  232,  §  6)  the  obtaining  of  a  divorce  in  another 
state  from  a  citizen  of  Michigan  is  made  cause  for  the  granting 
of  a  divorce  in  Michigan  to  its  citizen.  A  like  provision  is  also  in 
the  statutes  of  Florida.    Rev.  St.  Fla.  1892,  §  1480. 

Under  proposition  (d)  we  embrace  the  remaining  states,  although 
as  to  several  the  classification  may  admit  of  doubt,  viz.,  California, 
Illinois,  Iowa,  Kentucky,  and  Tennessee. 

It  indubitably,  therefore,  follows  from  the  special  review  we  have 
made  of  cases  in  certain  states,  and  the  classification  just  made 
of  the  remaining  state  cases  which  were  called  to  our  attention, 
*  *  *  that  the  contention  is  without  foundation,  that  such  cases 
establish  by  an  overwhelming  preponderance  that,  by  the  law  of 
the  several  states,  decrees  of  divorce  obtained  in  a  state  with  juris- 
diction alone  of  the  plaintiff  are,  in  virtue  of  the  full  faith  and 
credit  clause  of  the  Constitution,  entitled  to  be  enforced  in  another 
state  as  against  citizens  of  such  state.  Indeed,  the  analysis  and 
classification  which  we  have  made  serves  conclusively  to  demon- 
strate that  the  limited  recognition  which  is  given  in  most  of  the 
states  to  such  ex  parte  decrees  of  divorce  rendered  in  other  states 
is  wholly  inconsistent  with  the  theory  that  such  limited  recogni- 
tion is  based  upon  the  operation  of  the  full  faith  and  credit  clause 
of  the  Constitution  of  the  United  States,  and,  on  the  contrary,  is 
consistent  only  with  the  conception  that  such  limited  recognition 
as  is  given  is  based  upon  state  comity. 


156  SEPARATION  AND  DIVORCE 

No  clearer  demonstration  can  be  made  of  the  accuracy  of  this 
statement  than  the  obvious  consequence  that  if  the  full  faith  and 
credit  clause  were  now  to  be  held  applicable  to  the  enforcement 
in  the  states  generally  of  decrees  of  divorce  of  the  character  of 
the  one  here  involved  it  would  follow  that  the  law  of  nearly  all 
of  the  states  would  be  overthrown,  and  thus  it  would  come  to  pass 
that  the  decisions  which  were  relied  upon  as  establishing  that  the 
due  faith  and  credit  clause  applies  to  such  decrees  would  be  over- 
ruled by  the  adoption  of  the  proposition  which  it  is  insisted  those 
decisions  maintain.  The  only  escape  from  this  conclusion  would 
be  to  say  that  the  law  of  the  states  as  shown  by  the  decisions  in 
question  would  remain  unaffected  by  the  ruling  of  the  full  faith 
and  credit  clause,  because  not  repugnant  to  that  clause.  This 
would  be,  however,  but  to  assert  that  the  full  faith  and  credit  clause 
required  not  that  full  faith  and  credit  be  given  in  one  state  to  the 
decrees  of  another  state,  but  that  only  a  limited  and  restricted  en- 
forcement of  a  decree  of  one  state  in  another  would  fulfil  the  re- 
quirements of  that  provision  of  the  Constitution.  To  so  decide 
would  be  to  destroy  the  true  import  of  the  full  faith  and  credit 
clause,  as  pointed  out  in  the  outset  of  this  opinion.  Thus,  in  its 
ultimate  aspect,  the  proposition  relied  upon  reduces  itself  to  this, — 
either  that  the  settled  law  of  most  of  the  states  of  the  Union  as 
to  divorce  decrees  rendered  in  one  state,  where  the  court  rendering 
the  decree  had  jurisdiction  only  of  the  plaintiff,  must  be  held  to 
be  invalid,  or  that  an  important  provision  of  the  Constitution  of 
the  United  States  must  be  shorn  of  its  rightful  meaning. 

Without  questioning  the  power  of  the  state  of  Connecticut  to 
enforce  within  its  own  borders  the  decree  of  divorce  which  is  here 
in  issue,  and  without  intimating  a  doubt  as  to  the  power  of  the 
state  of  New  York  to  give  to  a  decree  of  that  character  rendered 
in  Connecticut,  within  the  borders  oT  the  state  of  New  York  and 
as  to  its  own  citizens,  such  efficacy  as  it  may  be  entitled  to  in 
view  of  the  public  policy  of  that  state,  we  hold  that  the  decree  of 
the  court  of  Connecticut  rendered  under  the  circumstances  stated 
was  not  entitled  to  obligatory  enforcement  in  the  state  of  New 
York  by  virtue  of  the  full  faith  and  credit  clause. 

It  therefore  follows  that  the  court  below  did  not  violate  the  full 
faith  and  credit  clause  of  the  Constitution  in  refusing  to  admit  the 
Connecticut  decree  in  evidence;  and  its  judgment  is,  therefore,  af- 
firmed.^" 

Mr.  Justice  Brown,  Mr.  Justice  Hari^an,  Mr.  Justice  BrewDr, 
and  Mr.  Justice  Holmes,  dissented. 

2  0  Compare  with  Haddock  v.  Haddock  the  cases  of  Kline  v.  Kline,  57  Iowa, 
386.  10  N.  W.  825,  42  Am.  Rep.  47  (1881)  and  Felt  v.  Felt.  59  N.  J.  Eq.  606, 
45  Atl.  105,  49  Atl.  1071,  47  L.  R.  A.  546,  83  Am.  St  Rep.  612  (1899).  See,  also. 
Ellis  V.  Ellis,  ante,  p.  127. 


PART  II 

PARENT  AND  CHILD 


LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION 
I.  Legitimacy  of  Children  * 


SCANLON  V.  WALSHE. 

(Court  of  Appeals  of  Maryland,  1S95.     81  Md.  118,  31  Atl.  498,  48  Am. 

St.  Rep.  488.) 

Fowler,  J.2  *  *  *  On  the  26th  March,  1891,  David  J. 
Walshe,  of  Baltimore  city,  died,  leaving  a  will  disposing  of  his  per- 
sonal property  and  one-third  of  his  real  estate,  and  intestate  as  to 
the  balance  of  his  real  estate,  which  latter  consisted  of  by  far  the 
larger  and  more  valuable  part  of  the  property,  known  as  the  "]\Ian- 
sion  House,"  on  the  northwest  corner  of  Fayette  and  St.  Paul 
streets,  in  said  city.  A  bill  was  filed  in  the  circuit  court  of  Balti- 
more city  by  Carlotta  Walshe,  for  the  sale  of  said  real  estate,  against 
a  number  of  persons  claiming  to  be  heirs  at  law  of  her  husband, 
David  J.  Walshe,  three  of  them  being  her  own  children,  born  while 
she  was  living  in  lawful  wedlock  with  a  former  husband,  and  the 
others  being  sisters  and  the  children  of  a  deceased  sister  of  said 
Walshe.  Proper  proceedings  were  had,  and,  by  agreement  of  par- 
ties, the  whole  property  was  sold  for  the  sum  of  $70,000,  which 
sale  was  duly  confirmed.  By  a  pro  forma  order,  the  court  below 
ratified  auditor's  account  B,  by  which  the  sum  of  $25,795.41  was 
allowed  to  three  children  of  the  plaintifif,  as  their  share  of  the  pro- 
ceeds of  sale.  From  this  order  the  sisters  and  the  children  of  a  de- 
ceased sister  of  Walshe  have  appealed;  and  the  question  is,  who 
are  the  heirs  at  law  of  David  J.  Walshe?  "^ 

"There  are  two  sets  of  claimants:  First,  two  sisters  and  several 
nephews  and  nieces;  and,  secondly,  the  plaintifif's  three  children, 
the  youngest  of  whom  is  about  24  years  of  age,  whai_al^t hough  born 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel,    (3d  Ed  ) 
|§  112,  113. 

2  Part  of  the  opinion  is  omitted. 

(157) 


158  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION 

while  their  mother  was  married  to  and  living  in  lawful  wedlock 
with  her  first  husband,  Florian  V.  Simmonds,  from  whom  she  was 
divorced,  claim  to  be  the  children  of  said  Walshe,  whom  she  after- 
wards married,  and  his  heirs  at  law,  because  subsequent  to  their 
birth  their  mother  and  their  alleged  father  married,  and  he  ac- 
knowledged them  to  be  his  children. 

A  contention  whose  foundations  are  so  contrary  to  good  morals, 
public  policy,  and  the  presumptions  of  law  can  be  maintained  only 
by  some  statute  which  not  only  introduces  "a  new  law  of  inherit- 
ance," as  our  statute  does  (Brewer  v.  Blougher,  14  Pet.  178,  10 
ly.  Ed.  408,  opinion  by  Chief  Justice  Taney),  but  which,  to  bring 
this  case  within  its  terms,  must  also  abrogate  some  rules  of  evi- 
dence which  we  are  not  inclined  either  to  weaken  or  destroy.  The 
statute  upon  which  the  appellees,  the  children  of  Carlotta  Walshe, 
rely  to  maintain  their  contention,  is  section  29,  art.  46,  of  the  Code, 
which  provides  that,  "if  any  man  shall  have  a  child  or  children  by 
any  woman  whom  he  shall  afterwards  marry,  such  child  or  chil- 
dren, if  acknowledged  by  the  man,  shall,  in  virtue  of  such  mar- 
riage and  acknowledgment,  be  hereby  legitimated  and  capable  in 
law  to  inherit  and  transmit  inheritance  as  if  born  in  wedlock." 

This  section  was  before  this  court  for  construction  in  the  case 
of  Hawbecker  v.  Hawbecker,  43  Md.  516,  where  a  married  man 
had  by  his  wife  four  children  born  in  lawful  wedlock,  and  during 
the  life  of  his  wife  he  also  had  six  children  by  another  woman. 
His  wife  died,  and  he  subsequently  married  the  mother  of  the  last- 
mentioned  children,  whom  he  acknowledged  as  his,  and  treated 
them  as  he  did  the  children  of  his  first  wife.  It  was  very  earnestly 
contended  in  that  case  that  the  section  above  quoted  should  not  be 
construed  so  as  to  include  within  its  terms  a  case  in  which  chil- 
dren are  conceived  and  born  when  their  parents  are  under  impedi- 
ment to  marry.  But  it  was  held  that  although  the  legislature,  no 
doubt,  in  thus  mitigating  the  severe  rule  of  the  common  law,  in- 
tended to  hold  out  to  the  surviving  parents  an  inducement  to  marry, 
and  thus  put  a  stop  to  the  further  illicit  intercourse  between  them, 
yet  "the  main  purpose  and  intent  of  the  enactment  *  *  *  was 
to  remove  the  taint  and  disability  of  bastardy  from  the  unoffend- 
ing children,  whenever  their  parents  did  marry,  without  regard 
to  the  deepness  of  the  guilt  on  the  part  of  the  parent."  And,  in 
concluding  the  opinion,  the  language  of  Chief  Justice  Taney  in  the 
case  of  Brewer  v.  Blougher,  supra,  to  the  same  effect,  in  relation 
to  the  same  provision  of  law,  is  quoted  approvingly.  We  said : 
"The  legislature  has  not  seen  fit  to  make  any  exceptions  to  its  op- 
eration. Its  terms  embrace  every  case  where  'any  man  shall  have 
a  child  or  children  by  any  woman  whom  he  shall  afterwards  mar- 
ry.' "     Hawbecker  v.  Hawbecker,  supra. 

It  will  be  observed,  however,  that  in  the  case  we  have  last  cited 
there  was  no  question  whatever  made  as  to  the  paternity  or  illegit- 


LEGITIMACY   OF   CHILDREN  159 

imacy  of  the  children  who  were  admitted  to  have  been  born  out 
of  wedlock.     It  was  assumed  that  the  reputed  was  the  real  father, 
and  that  the  children  were  illegitimate;  and  the  only  question  was 
whether  the  law  was  applicable  to  the  admitted  facts.    J^utjiere 
weliave  a  different  condition.     Indeed,  this  is  the  very  opposiTe 
to  Hawbecker's  Case ;    for,  while  the  force  of  the  broad  terms  of 
the  law  is  here  admitted,  it  is  contended  that  the  foundation  facts 
—the  facts  of  illegitimacy  and  of  the  alleged  paternity— are  not 
established  at  all,  because— First,  the  witnesses,  are  incompetent; 
and,   secondly,  even   if  competent,  their  evidence  is  not  of  that 
strong,  distinct,  satisfactory,  and  conclusive  character  which  is  re- 
quired to  overcome  the  presumption  expressed  in  the  common-law 
rule  "Heeres  legitimus  est  quern  nuptiae  demonstrant,"  or  another 
expression  of  the  same  rule,  "Pater  est  quem  nuptise  demonstrant." 
The  old  rule  in  England  was,  and  also  in  this  country  (1  Greenl. 
Ev.  §  28),  that  this  presumption  of  legitimacy  was  conclusive.    But 
it  is  said  the  courts  did  not  long  permit  so  violent  an  estoppel.     1 
Bish.  Mar.  &  Div.  §  1170.    This  legal  presumption  has  been  char- 
acterized as  the  foundation  of  every  man's  birth  and  status,  and 
of  the  whole  fabric  of  human  society,  and  nowhere  has  its  full 
force  and  extent  been  so  fully  acknowledged  and  so  well  expressed 
as  in  the  case  of  Hargrave  v.  Hargrave,  9  Beav.  553,  by  Lord  Lang- 
dale,  the  then  master  of  rolls,  decided  in  1846.    He  says:   "A  child 
born  of  a  married  woman  is,  in  the  first  instance,  presumed  to  be 
legitimate.    The  presumption  thus  established  by  law  is  not  to  be 
rebutted  by  circumstances  which  only  create  doubt  and  suspicion ; 
but  it  may  be  wholly  removed  by  proper  and  sufficient  evidence 
showing  that  the  husband  was  (1)  incompetent;    (2)  entirely  ab- 
sent, so  as  to  have  no  intercourse  or  communication  of  any  kind 
with  the  mother;    (3)  entirely  absent  at  the  period  during  which 
the  child  must,  in  the  course  of  nature,  have  been  begotten;    or 
(4)  only  present  under  such  circumstances  as  afford  clear  and  sat- 
isfactory proof  that  there  was  no  sexual  intercourse."     "Such  evi- 
dence as  this,"  says  his  lordship,  "puts  an  end  to  the  question,  and 
establishes  the  illegitimacy  of  the  child  of  a  married  woman."    And 
in  the  same  case  it  was  held  that  where  opportunities  occurred  for 
sexual  int'ercourse  between  the  husband  and  wife,  and  there  was 
no  proof  of  his  impotency,  no  evidence  can  be  admitted  to  show 
that  any  man  other  than  the  husband  may  have  been  or  probably 
was  the  father  of  the  wife's  child. 

It  was  said  in  Craufurd  v.  Blackburn,  17  Md.  56,  11  Am.  Dec. 
323,  that  the  declarations  of  the  parents  were  not  admissible  to 
defeat  the  consequences  of  marriage,  such  as  that  the  children  are 
bastards;  and  Lord  Mansfield  said  in  Goodright  v.  Moss,  Cowp. 
594:  "It  is  a  rule  founded  in  decency,  morality,  and  policy  that  the 
father  and  mother  shall  not  be  permitted  to  say  after  marriage  that 
their  offspring  is  spurious."     And,  in  our  opinion,  the  testimony 


160  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION 

of  the  adulterer,  when  offered  for  the  same  purpose,  should  like- 
wise be  excluded ;  especially  so  in  all  cases  in  which  it  appears 
that  the  proof  does  not  exclude  the  possibility  or  probability  of 
access  of  the  husband  to  the  wife.  In  such  cases,  as  Lord  Lang- 
dale  said  in  Hargrave  v.  Hargrave,  supra,  there  being  no  proof 
of  impotency,  no  evidence  will  be  admitted_to  show  illegitimacy. 
To  this  extent,  at  least,  we  think  the  presumption  of  the  legiti- 

"macy  of  the  child  of  a  married  woman  should  be  conclusive. 

The  mere  fact  of  marriage  and  acknowledgment  should  not,  un- 
der the  facts  of  this  case,  be  received  as  proper  evidence  of  illegit- 
imacy. The  fact  of  illegitimacy  should  first  be  proved,  and  then 
the  marriage  and  acknowledgment  may  be  offered  to  prove  pa- 
ternity. And  so  it  was  held  in  Grant  v.  Mitchell,  83  Me.  27,  21  Atl. 
178.  And  in  Hemmenway  v.  Towner,  1  Allen  (Mass.)  209,  the 
declarations  of  the  adulterer  offered  to  show  illegitimacy  of  the 
child  of  a  married  woman  were  excluded,  the  husband  and  wife 
having  lived  together  as  such  until  six  months  next  before  the 
birth  of  the  child.  It  is  true  these  two  cases,  last  cited,  were  de- 
cided upon  statutes  not  altogether  like  ours;  but  the  questions 
decided  were  questions  of  evidence,  and  we  think  what  was  said 
in  those  cases  on  this  subject  is  particularly  applicable  to  this  case. 
Now,  the  only  testimony  before  us  which  can  properly  be  resorted 
to,  to  prove  illegitimacy,  is  that  of  the  plaintiff'  Carlotta  Walshe, 
which,  as  we  have  seen,  is  inadmissible  for  that  purpose.  At  the 
most,  her  testimony  may  be  offered  to  show  she  was  untrue  to  her 
husband.  1  Bish.  Mar.  &  Div.  And  so,  also,  as  to  the  declarations 
and  letters  of  David  Walshe  which  appear  to  have  been  offered 
to  prove  acknowledgment  of  the  children.  Neither  will  be  admis- 
sible to  show  the  husband  is  not  the  father,  if  he  had  or  could 
have  had  access,  as  indicated  in  Hargrave  v.  Hargrave,  supra ;  and 
that  he  could  have  had  access,  we  think,  is  clearly  shown  in  this 
case,  for  the  separation  did  not  occur  until  several  years  after  the 
birth  of  the  youngest  child.  But  the  testimony  of  Carlotta  Walshe, 
as  well  as  that  of  the  adulterer,  if  he  were  alive,  would  be  inad- 
missible to  show  bastardy,  and  equally  so  his  declarations,  because 
they  are  both  estopped  to  swear  to  a  state  of  facts  in  conflict  and 
inconsistent  with  the  proceedings  for  divorce,  and  for  change  of 
name  of  her  three  younger  children.  She  will  not  be  allowed  now 
to  come  into  court,  and  recklessly  contradict  what  she  alleged  in 
the  one  and  swore  to  in  the  other.    Edes  v.  Garey,  46  Md.  41 ;  Hall 

T."^"ATcCann,  51  Md.  351;  Railroad  Co.  v.  Howard,  13  How.  335,  14 
L.  Ed.  157. 

And  it  appearing  that  he  was  the  instigator  of  both  proceedings, 
and  in  a  position  to  know  the  truth,  the  estoppel  should  work 
equally  against  him,  his  declarations  and  his  letters.     *     *     *  ,.0^^ 
der_x£v:ersed. 


ADOPTION   OF  CHILDREN  161 


II.  Adoption  of  Children  ' 


THOMAS  V.  MALONE. 

(Kansas  City  Conrt  of  Appeals,  Missouri,  1910.    142  Mo.  App.  193,  126  S.  W. 

522.) 

Action  by  Kate  Thomas  against  Effie  Malone,  individually  and 
as  executrix  of  Basley  W.  Malone,  deceased.  From  a  judgment 
for  defendant,  plaintiff  appeals. 

Johnson,  J.  This  is  an  action  in  equity,  the  object  of  which  is 
to  obtain  a  decree  that  plaintiff  is  a  pretermitted  heir  of  Basley 
W.  Malone  who  died  testate  in  Howard  county,  and  is  entitled 
to  share  in  his  estate.  Defendant  demurred  to  the  petition  on  the 
ground  that  the  facts  alleged  therein  fail  to  constitute  a  cause  of 
action.  The  demurrer  was  sustained,  and  plaintiff,  refusing  to 
plead  further,  brought  the  cause  here  by  appeal. 

Briefly  stated,  the  facts  alleged  in  the  petition  are  as  follows: 
Plaintiff,  the  daughter  of  Alex  and  Caroline  Malone  and  niece  of 
Basley  W.  Malone,  was  born  in  1859.  Her  parents  had  a  large 
family  and  were  poor.  Her  uncle,  who  had  been  married  five  or 
six  years,  had  no  children  and  was  in  good  pecuniary  circumstances. 
Plaintiff's  mother  survived  her  birth  only  two  weeks,  and  in  con- 
templation of  death  besought  Basley  and  his  wife  to  adopt  her 
newborn  child.  They  consented  on  condition  that  Alex,  the  father, 
would  renounce  all  claims  to  his  child.  Alex  made  the  required 
promise,  and  Basley  and  his  wife  agreed  with  the  dying  woman 
to  adopt  plaintiff.  The  statutory  requirements  necessary  to  a  legal 
adoption  were  not  performed,  but  immediately  following  the  death 
of  plaintiff's  mother  Basley  and  his  wife  took  plaintiff'  to  their  home, 
and  thereafter  cared  for  and  treated  her  as  their  child.  They  reared 
her  in  the  belief  that  she  was  their  child,  and  it  was  not  until  she 
reached  the  age  of  JZ-^ears  that  she  learned  from  others  the  true 
facts  about  her  parentage.  Basley  and  his  wife  then  assured  her 
that  she  was  their  adopted  child,  and  that  they  would  always  con- 
sider and  treat  her  as  their  own  daughter.  They  told  her — and  she 
believed  the  statement — that  they  had  legally  adopted  her.  The 
father  of  plaintiff  observed  his  promise  not  to  assert  any  parental 
rights  over  her,  and  she  lived  with  her  foster  parents  until  she  was 
25  years  of  age,  rendering  to  them  the  filial  love  and  duty  a  daugh- 
ter owes  her  natural  parents.  Then  she  married,  and  thereafter 
lived  with  her  husband.     Plaintiff's  foster  mother  died  childless 

•  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (;^.(1E(1.) 
§  115. 

COOLET  P.&  D.ReL.— 11 


162  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION 

in  1890  leaving  her  estate  to  her  husband.  He  remarried,  and  his 
second  wife  died  childless  in  1900.  Afterward  he  married  the  de- 
fendant, and  some  years  later  died  without  issue.  He  left  a  will 
in  which  he  gave  all  of  his  property  to  defendant,  his  widow,  and 
failed  to  mention  plaintiff.  , 

""Though  the  petition  alleges  that  Basley  Malone  and  his  wife 
agreed  that  they  would  legally  adopt  plaintiff,  it  does  not  specific- 
ally state  they  agreed  to  make  plaintiff  their  heir.  Doubtless  the 
absence  of  such  promise  was  what  prompted  the  trial  court  to  sus- 
tain the  demurrer  to  the  petition.  Plaintiff  argues  that  since  she 
fully  performed  the  contract  made  for  her  benefit  by  her  dying 
mother,  equity  will  enforce  that  contract  though  it  falls  short  of 
meeting  the  statutory  requirements  relating  to  the  adoption  of  chil- 
dren, and,  treating  her  as  though  she  were  a  lawful  child  of  dece- 
dent, will  recognize  her  statutory  rights  as  a  pretermitted  heir. 
Section  4611,  Rev.  St.  1899  (Ann.  St.  1906,  p.  2505). 

The  courts  of  this  state,  under  certain  circumstances,  have  en- 
forced oral  contracts  of  adoption,  and  it  may  be  considered  as  set- 
tled that  equity  will  decree  an  adoption  and  its  resultant  rights  in 
cases  where  no  statutory  adoption  exists  when  to  do  otherwise 
would  result  in  palpable  injustice.  Adoption  was  unknown  to  the 
common  law,  and  statutes  in  derogation  of  the  common  law  are 
to  be  strictly  construed.  But  the  rule  of  strict  construction  is  not 
extended  to  the  act  of  adoption  itself.  Hockaday  v.  Lynn,  200  Mo. 
464,  98  S.  W.  585,  8  L.  R.  A.  (N.  S.)  117,  118  Am.  St.  Rep.  672. 
And  "since  the  statute  has  made  the  adoption  of  a  child  lawful, 
the  law,  for  the  same  reasons  that  it  sometimes  enforces  oral  con- 
tracts aifecting  real  estate,  will  not  allow  the  mere  failure  of  one 
party  to  do  his  duty  to  work  an  irreparable  wrong  to  one  who  has 
fully  performed  his  part.  This  court,  for  that  reason,  has  not  only 
held  an  oral  contract  for  adoption  valid,  but  has  also  required  ful- 
fillment of  a  collateral  agreement  of  the  adopting  parent  to  leave 
the  adopted  child  his  estate  at  his  death."  Lynn  v.  Hockaday,  162 
Mo.,  loc.  cit.  125,  61  S.  W.  888,  85  Am.  St.  Rep.  480 ;  Sharkey  v. 
McDermott,  91  Mo.  647,  4  S.  W.  107,  60  Am.  Rep.  270.  The  con- 
tract for  the  benefit  of  plaintiff  made  by  her  mother  was  valid  in 
equity,  and  when  plaintiff  performed  it  and  her  foster  parents  re- 
ceived the  benefit  of  her  performance  she  became,  in  equity,  their 
adopted  child.  Equity  will  treat  as  done  that  which  ought  to  have 
been  done,  and  as  Basley  in  his  lifetime  would  not  be  heard  to  re- 
pudiate the  obligation  of  a  contract  of  which  he  had  received  the 
full  benefit,  neither  will  his  executor  be  allowed  to  stand  on  ground 
so  inequitable. 

Defendant  argues:  "An  agreement  for  the  adoption  of  a  child 
and  to  leave  property  to  it  when  fully  performed  by  the  child  may 
be  enforced  in  equity.  This  is  not  on  the  ground  that  the  child 
has  been  legally  adopted,  but  because  a  contract  to  leave  property 


ADOPTION    OF   CHILDUEN  1G3 

to  the  child,  when  fully  performed  on  its  part,  may  be  enforced 
in  equity" — citing  1  Encyc.  of  Law  (2d  Ed.)  728,  which  refers  to 
Healey  v.  Simpson,  113  Mo.  340,  20  S.  W.  881.  In  that  case  the 
contract,  by  which  it  was  proposed  to  adopt  the  child,  provided 
"that  they  (the  adopting  parents)  will  govern,  educate,  maintain, 
and  in  all  respects  treat  said  child  as  though  she  were  their  own 
natural  offspring;  and  it  is  further  agreed  that  said  Evangeline 
Brewster  shall  have  and  inherit  from  the  estate  of  said  parties  of 
the  second  part  in  the  same  manner  and  to  the  same  extent  that 
a  child  born  of  their  union  would  inherit."  In  efifect,  this  meant 
that  in  adopting  the  child  they  would  give  it  the  status  of  an  issue 
of  their  own  bodies — no  more,  no  less.  A  statutory  deed  of  adop- 
tion would  have  conferred  on  the  child  these  precise  rights  and 
nothing  more.  Chapter  90,  Rev.  St.  1899  (Ann.  St.  1906,  pp.  2728- 
2730).  Without  any  specific  agreement  to  that  eflfect,  a  child  le- 
gally adopted  will  inherit  from  its  adoptive  parents  in  like  man- 
ner as  their  lawful  issue.  IMoran  v.  Stewart,  122  I\Io.  295,  26  S. 
W.  962;  Moran  v.  Stewart,  132  Mo.  73,  23  S.  W.  443.  This  being 
true,  a  contract  to  adopt  carries  the  incidental  right  of  heirship 
which,  as  in  the  case  of  a  natural  child,  may  be  cut  off  only  by  the 
will  of  the  adoptive  parent  in  which  the  adopted  child  is  mentioned. 

It  follows  from  what  we  have  said  that  the  controlling  consid- 
eration in  Healey  v.  Simpson,  supra,  was  not,  as  we  have  shown, 
tFe  mcidental  promise  that  the  adopted  child  would  inherit  as 
though  she  had  been  born  of  her  adoptive  parents,  but  was  the 
agreement  to  adopt  the  child,  and  the  subsequent  performance  by 
the  child  of  her  part  of  the  agreement.  In  the  later  case  of  Lynn 
V.  Hockaday,  162  Mo.  Ill,  61  S.  W.  885,  85  Am.  St.  Rep.  480,  the 
oral  contract  to  adopt  did  not  mention  the  rights  of  the  child  as 
an  heir,  and  still  that  contract  was  enforced.  So  the  contract  in 
the  present  case  should  be  enforced.  The  blessings  which  only  a 
child  can  bring  to  a  home  were  bestowed  on  a  childless  couple  by 
plamtiff's  performance  of  the  contract  made  by  her  mother  for  her 
benefit.  Plaintiff  is  entitled  to  her  reward,  and  since  she  was  for- 
gotten in  her  adoptive  father's  will,  she  must  be  accorded  the  rights 
given  by  law  to  a  pretermitted  heir. 

The  demurrer  to  the  petition  should  have  been  overruled.  On 
proof  of  the  facts  alleged  in  her  petition,  plaintiff  should  have  a 
decree  declaring  her  status  as  an  heir.  The  judgment  is  reversed 
and  the  cause  remanded. 


164  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION 


III.  Status  of  Illegitimate  Children  * 


CROAN  V.  PHELPS. 

(Court  of  Appeals  of  Kentucky,  1893.     94  Ky.  213,  21  S.  W.  874,  23 

U  R.  A.  753.) 

In  proceedings  for  the  distribution  of  the  estate  of  Wesley  Phelps, 
deceased,  a  bastard,  an  order  was  made  giving  the  estate  to  the 
devisees  of  the  widow,  from  which  order  James  Croan  and  others, 
as  collateral  heirs  of  the  bastard's  deceased  mother,  appeal. 

Hazei.rigg,  J.  Wesley  Phelps,  at  quite  an  advanced  age,  died  in- 
testate, and  without  issue,  the  owner  of  a  large  estate  in  Bullitt 
county,  Ky.  The  proof  is  clear  that  he  was  the  illegitimate  son  of 
Alice  McDaniel,  whose  death  preceded  his  some  years.  He  left 
a  widow,  who  claims  the  entire  property.  It  is  also  claimed  by  the 
descendants  of  the  brothers  and  sisters  of  Phelps'  mother,  Alice; 
and  the  sole  question  presented  upon  this  appeal  is,  who  takes  the 
property?  The  lower  court  gave  it  to  the  widow,  or  rather  to  her 
devisees  and  legatees,  she  having  died  after  instituting  this  action. 

The  appellees  base  their  claim  to  the  estate  under  subsection  9, 
§  1,  c.  31,  of  the  General  Statutes,  which  provides  that,  if  there  be 
neither  paternal  nor  maternal  kindred,  the  whole  estate  shall  go 
to  the  husband  or  wife  of  the  intestate.  They  say  that  by  "kindred" 
is  meant  such  as  can  lawfully  inherit.  The  mother  being  dead,  and 
there  being  no  legal  father,  and  no  provision  for  the  transmission 
of  inheritance  from  a  bastard  to  collaterals,  the  appellees  contend 
it  is  as  if  the  paternal  and  maternal  kindred  were  wholly  extinct, 
and  that  the  contingency  arose  upon  which  the  widow  became  en- 
titled to  take  the  whole  estate. 

The  appellants  contend  that,  under  section  5  of  the  statute 
quoted,  the  mother,  if  living,  would  have  taken,  and  that  her 
brothers  and  sisters  or  their  descendants  must  now  take  in  her 
stead ;  that  the  intestate  was  capable  under  the  statute  of  transmit- 
ting the  estate  to  and  through  his  mother  on  to  them.  That  sec- 
tion is  as  follows:  "Bastards  shall  be  capable  of  inheriting  and 
transmitting  an  inheritance  on  the  part  of  or  to  the  mother;  and 
bastards  of  the  same  mother  shall  be  capable  of  inheriting  and 
transmitting  an  inheritance  on  the  part  of  each  other,  as  if  such 
bastards  were  born  in  lawful  wedlock  of  the  same  parents." 

It  is  insisted  that  the  expression  "on  the  part  of  of  to  the  mother" 
must  be  construed  liberally,  and  as  meaning  transmissibility  of 

*For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  114. 


STATUS   OF   ILLEGITIMATE    CHILDREN  165 

estate,  not  only  "to,"  but  through,  the  mother,  and  on  to  her  col- 
lateral kindred.  In  determining  the  meaning  of  these  words  and 
the  proper  legal  exposition  of  the  statute,  we  must  keep  in  mind 
that  by  the  rules  of  the  common  law  a  bastard  had  no  inheritable 
blood,  and  could  neither  receive  from  nor  transmit  an  inheritance 
to  his  father,  mother,  brothers,  or  sisters.  The  Kentucky  statute 
of  descents  of  December,  1796,  was  an  innovation  on  the  common 
law,  and  reads  as  follows:  "Bastards  also  shall  be  capable  of  in- 
heriting, or  transmitting  inheritance,  on  the  part  of  their  mother, 
in  like  manner  as  if  they  had  been  lawfully  begotten  of  such 
mother."  This  was  a  copy  of  the  Virginia  statute  of  1787,  and  with 
reference  to  which  the  supreme  court  of  the  United  States,  in 
Stevenson's  Heirs  v.  Sullivant,  5  Wheat.  255,  5  L.  Ed.  70,  said: 
"We  understand  it  to  be  that  they  [bastards]  shall  have  a  capac- 
ity to  take  real  estate  by  descent  immediately  or  through  their 
mother  in  the  ascending  line,  and  transmit  the  same  to  their  line 
as  descendants,  in  lik'e  manner  as  if  they  were  legitimate."  The  ex- 
pression "on  the  part  of  their  mother"  was  not  held  to  confer  the 
right  to  inherit  on  the  mother  from  her  bastard  child,  but  the  whole 
effect  of  the  section  and  this  expression  was  simply  to  enable  the 
bastard  to  take  by  inheritance  from  or  through  the  mother  in  the 
direct  line,  and  to  pass  that  inheritance  with  the  same  directness  to 
his  own  issue;  and  the  illegitimate  brothers  in  that  case  were  de- 
nied the  right  to  inherit  from  their  legitimate  brother.  While  quasi 
legitimate  in  some  limited  respects,  they  were  nevertheless  said  to 
be  bastards  in  all  others,  and  as  such  could  have  neither  father, 
brothers,  nor  sisters,  and  their  inheritable  blood  was  confined  within 
the  narrow  limits  of  the  very  letter  of  the  law. 

This  restricted  construction  was  followed  by  the  Kentucky  courts 
until  the  act  of  1840,  though  not  without  a  strong  dissent  in  Scrog- 
gin  V.  Allan,  2  Dana,  363,  (decided  in  1834.)  This  act  provided 
"that  the  mother  shall  be  and  is  hereby  rendered  capable  to  in- 
herit as  heir  or  distributee  of  her  bastard  child;  and  brothers  and 
sisters  of  the  same  mother  born  out  of  wedlock  shall  be  capable 
to  inherit,  and  take  by  descent  a  distribution  from  each  other,  as 
though  born  in  wedlock,  and  as  brothers  and  sisters  of  the  whole 
blood."  And  notwithstanding  the  seeming  generous  intention  of 
the  statute  to  make  the  illegitimate  child  legitimate  ex  parte  ma- 
terna  to  all  intents  and  purposes  as  though  born  in  wedlock,  yet 
in  Remmington  v.  Lewis,  8  B.  Alon.  606,  (decided  in  1848,)  the 
court  used  this  language:  "It  is  impossible,  upon  any  admissible 
construction  of  the  language  of  the  act,  to  consider  it  as  estab- 
lishing a  legal  relationship  for  the  purpose  of  inheritance  between 
a  bastard  and  any  other  of  his  bastard  relations  but  his  mother  and 
such  other  illegitimate  issue  as  she  may  have."  It  does  not  operate 
to  establish  a  right  either  in  the  illegitimate  children  to  inherit  from 
the  legitimate  or  in  the  legitimate  children  to  inherit  from  the  il- 


166  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION 

leg-itimate.  "Under  this  construction,"  says  the  court,  "the  bas- 
tard has,  in  view  of  the  law  of  descents,  no  brothers  or  sisters  ex- 
cept the  illegitimate  children  of  the  same  mother,  and  no  other  col- 
lateral kindred  who  can  take  his  estate  as  heirs ;  and  upon  his  death 
without  issue,  without  lineal  maternal  ancestor  alive,  and  without 
brother  or  sister,  the  illegitimate  issue  of  his  mother,  or  the  de- 
scendants, his  wife,  if  he  leaves  one,  is  his  heir,  under  the  four- 
teenth section  of  the  statute,  and  not  the  legitimate  son  of  his 
mother." 

If  the  legitimate  son  of  the  mother  of  the  bastard  cannot  inherit 
his  estate  through  their  common  mother,  how  can  the  collateral 
kindred  of  the  mother  in  this  case  hope  to  do  so?  It  cannot  be 
contended  that  our  statute  is  more  liberal  than  that  of  1840.  In- 
deed, it  is  only  by  a  forced  construction  that  the  mother  herself 
can  be  said  to  inherit  from  her  bastard  child.  The  plain  act  of  1840 
confers  for  the  first  time  that  right  on  her,  in  its  opening  clause, 
thus:  "That  the  mother  shall  be  and  is  hereby  rendered  capable 
to  inherit  as  heir  of  her  bastard  child"  which  was  not  inserted  in 
the  Revised  Statutes  (1852)  or  the  General  Statutes  (1873).  In- 
stead thereof,  the  old  eighteenth  section  of  the  Kentucky  act  of 
1796,  copied  from  the  Virginia  act  of  1787,  was  adopted  with  the 
interpolation  of  the  words  "or  to"  after  the  words  "on  the  part  of." 
And  suppose  we  adopt  the  construction  given  this  statute  by  the 
supreme  court  of  the  United  States  in  Stevenson's  Heirs  v.  Sulli- 
vant,  supra,  and  followed  by  a  majority  of  this  court  in  Scroggin 
V.  Allan,  above  quoted,  we  would  have  this  state  of  the  case :  Bas- 
tards shall  be  capable  of  taking  real  property  by  descent  imme- 
diately or  through  their  mother,  or  on  the  part  of  their  mother,  and 
of  transmitting  that  same  estate  without  alleviation  to  their  own 
issue  and  "to  the  mother."  The  old  statutes  were  consistent  and 
harmonious,  simply  empowering  the  bastard,  though  within  narrow 
limits,  to  inherit  property  from  his  mother,  which  under  the  com- 
mon law  he  could  not  do,  and  transmit  the  same  to  his  own  issue. 
Now,  singularly  enough,  after  so  inheriting  it,  he  is  permitted  to 
transmit  it  "to  the  mother"  from  whom  he  has  just  inherited  it. 

The  well-known  legal  meaning  of  the  expression  "on  the  part  of 
the  mother,"  as  construed  by  the  courts,  must  therefore  be  dis- 
carded, and  it  must  be  supposed  that  they  were  used  in  the  statute 
in  the  sense  of  "from  the  mother ;"  hence  the  meaning  is  as  if  the 
reading  was:  "Bastards  shall  be  capable  of  inheriting  and  trans- 
mitting an  inheritance  from  or  to  the  mother."  And  even  this 
solution  is  well-nigh  spoiled  by  the  rejection  of  the  alternative  "or" 
properly  used  in  the  old  statute,  and  inserting  the  word  "and"  in 
the  present  one,  thus  requiring  the  same  estate  to  be  inherited  and 
transmitted  to  or  from  the  mother.  However,  the  statute  must 
be  construed  to  mean  that  bastards  shall  be  capable  of  inheriting 
from  the  mother,  and  of  transmitting  an  inheritance  to  the  mother, 


STATUS   OF  ILLEGITIMATE   CHILDREN  167 

and  so  must  be  held  to  embody,  in  substance,  the  provisions  of 
the  acts  of  1796  and  of  1840,  but  certainly  not  to  extend  or  broaden 
them.  In  the  case  of  Sutton  v.  Sutton,  87  Ky.  217,  8  S.  W.  337, 
12  Am.  St.  Rep.  476,  some  progress  was  made  towards  liberalizing 
this  section,  and  there  the  legitimate  children  of  a  bastard  take 
what  he,  if  alive,  would  have  taken  from  an  illegitimate  brother  of 
the  same  mother.  But  it jwas  done  under  the  statute  making  bas- 
tards capable  of  inheriting  and  transmitting  an  inheritance  on  the 
part  of  each  other  as  if  born  in  lawful  wedlock  of  the  same  parents. 
There  is  no  such  statute  in  aid  of  the  collateral  kindred  of  the 
mother. 

In  Allen  v.  Ramsey's  Heirs,  1  Mete.  635,  and  Berry  v.  Owens' 
Heirs,  5  Bush,  452,  the  right  of  the  bastard  to  inherit  from  the  moth- 
er's collateral  kindred  was  very  decidedly  negatived.  In  Jackson  v. 
Jackson,  78  Ky.  390,  39  Am.  Rep.  246,  this  court,  through  Judge 
Cofer,  held  that  the  bastard  could  not  inherit  through  his  mother 
from  her  ancestors.  "It  must  be  regarded,"  says  the  court,  "as  the 
settled  law  of  this  state  that^_bastard  cannot  inherit  from  collat- 
erals from  whom  his  mother,  if  living,  would  have  inherited;  and 
it  would  seem  to  follow,  as  a  necessary  logical  ^sequence,  that  he 
cannot  inherit  from  the  ancestors  of  his  mother."  And  while  the 
exact  question  was  not  before  the  court,  the  learned  judge  added: 
"And  this  construction  is  somewhat  fortified  by  the  fact  that  a  bas- 
tard can  only  transmit  an  inheritance  in  the  ascending  line  'to 
Tiis  mother/  " — and,  to  preserve  harmony  in  the  construction  of  the 
statute,  the  court  was  constrained  to  adopt  this  confessedly  strict 
construction. 

Whatever  might  have  been  the  original  intention  of  the  lawmak- 
ers towards  broadening  the  inheriting  capacity  of  these  innocent 
offspring  of  their  mother's  incontinence,  it  must  be  confessed  that 
a  rather  illiberal  view  of  the  statutes  respecting  them  has  obtained, 
which,  however,  must  now  be  adhered  to.  Let  the  judgment  be- 
low giving  the  estate  to  the  wife's  beneficiaries  be  confirmed. 


168  DUTIES  AND   LIABILITIES   OF   PARENTS 


DUTIES  AND  LIABILITIES  OF  PARENTS 
I.  Parent's  Duty  to  Maintain  Child* 


PORTER  V.  POWELL. 

(Supreme  Court  of  Iowa,  1890.    79  Iowa,  151,  44  N.  W.  295,  7  L.  R.  A. 

176,  18  Am.  St.  Rep.  353.) 

The  district  court  certifies  to  this  court  the  following  question, 
upon  which  it  is  desirable  to  have  the  opinion  of  the  supreme 
court:  "Is  a  father  legally  liable  to  a  physician  for  the  latter's 
services  in  professionally  treating  the  minor  daughter  of  said  father, 
dangerously  attacked  with  typhoid  fever,  who,  at  the  date  of  said 
treatment,  was  seventeen  years  of  age,  and  was  then,  and  had  been, 
residing  away  from  her  father's  house  for  three  years  prior  to  the 
rendition  of  said  services,  earning  and  controlling  her  own  wages, 
and  providing  herself  with  clothing,  at  a  place  thirty  miles  dis- 
tant from  her  father's  place  of  residence,  the  father  not  furnish- 
ing, or  agreeing  with  his  daughter  to  furnish,  her  with  any  money, 
or  means  of  support,  but  consenting  to  her  absence  from  home ;  the 
said  professional  services  being  rendered  at  the  request  of  the  said 
minor  daughter,  but  were  rendered  and  furnished  without  the  pro- 
curement, knowledge,  or  consent  of  the  defendant,  and  without 
knowledge  of  the  sickness,  until  demand  was  made  for  payment  of 
said  services  by  plaintiff,  the  attendance  of  plaintiff  being  from 
day  to  day,  for  a  period  of  twenty  days?"  Judgment  for  plain- 
tiff.   Defendant  appeals. 

Given,  J.  ^  1.  Appellant's  contention  is  that  the  obligation  of 
parents  to  support  their  minor  children  is  only  a  moral  one,  and 
is  not  enforceable  in  the  absence  of  statute  or  promise ;  that  such 
promise  is  not  to  be  implied  from  mere  moral  obligation,  nor  from 
the  statute  providing  for  the  reimbursement  of  the  public ;  and  that 
an  omission  of  duty,  from  which  a  jury  may  find  a  promise  by  im- 
plication of  law,  must  be  a  legal  duty,  capable  of  enforcement  by 
process  of  law.  At  first  glance,  this  view  of  the  law  seems  opposed 
to  our  natural  sense  of  justice;  yet  it  is  not  without  support  in 
the  authorities.  Such  is  held  to  be  the  law  in  New  Hampshire 
and  Vermont.  See  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499 ; 
Farmington  v.  Jones,  36  N.  H.  271 ;   Gordon  v.  Potter,  17  Vt.  348. 

iFor  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
i  116. 
2  Part  of  the  opinion  is  omitted. 


parent's  duty  to  maintain  child  169 

A  different  doctrine  has  long  since  been  held  in  this  state.  In 
Dawson  v.  Dawson,  12  Iowa,  513,  this  court  held  that  "the  duty 
of  the  parent  to  maintain  his  offspring  until  they  attain  the  age 
of  maturity  is  a  perfect  common-law  duty."  In  Johnson  v.  Barnes, 
69  Iowa,  641,  29  N.  W.  759,  which  was  an  action  by  the  mother, 
who  had  been  divorced,  against  the  father,  for  support  furnished 
their  children,  the  court  say :  "As  there  was  no  promise,  the  ques- 
tion to  be  determined  is  whether  one  can  be  inferred  in  favor  of 
a  wife,  who  supports  her  child,  as  against  her  husband,  who  has 
without  cause  abandoned  her  and  his  child.  The  obligation  of 
parents  to  support  their  children  at  common  law  is  somewhat  un- 
certain, ill  defined,  and  doubtful.  Indeed,  it  has  been  said  that 
there  is  no  such  obligation.  *  *  *  But  we  are  not  prepared  to 
say  that  this  rule  has  been  adopted  in  this  country,  and  it  should 
be  conceded,  we  think,  that,  independent  of  any  statute,  parents 
are  bound  to  contribute  to  the  support  of  their  minor  children,  and 
that  such  obligation  rests  mainly  on  the  father,  in  the  absence  of 
a  statute,  if  of  sufficient  ability ;  and  that,  in  favor  of  a  third  per- 
son, who  supports  a  child,  a  promise  to  pay  may  and  should  be 
inferred  on  the  ground  of  the  legal  duty  imposed." 

In  Van  Valkinburgh  v.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am. 
Dec.  395,  it  is  said:  "A  parent  is  under  a  natural  obligation  to 
furnish  necessaries  for  his  infant  children ;  and,  if  the  parent  neg- 
lect that  duty,  any  other  person  who  supplies  such  necessaries 
is  deemed  to  have  conferred  a  benefit  on  the  delinquent  parent,  for 
which  the  law  raises  an  implied  promise  to  pay  on  the  part  of  the 
parent."  In  5  Wait,  Act.  &  Def.  50,  the  author  says :  "The  duty  of 
parents  to  support,  protect,  and  educate  their  offspring  is  founded 
upon  the  nature  of  the  connection  between  them.  It  is  not  only  a 
moral  obligation,  but  it  is  one  which  is  recognized  and  enforced  by 
law.  *  *  *  In  order  to  hold  the  person  liable  in  any  case  for 
goods  furnished,  either  actual  authority  for  the  purchase  must  be 
shown,  or  circumstances  from  which  such  authority  may  be  im- 
plied. *  *  *  'phe  legal  obligation  of  parents  in  respect  to  sup- 
port, extends  only  to  those  things  which  are  necessary;  and  if  a 
parent  refuses  or  neglects  to  provide  such  things  for  his  child, 
and  they  are  supplied  by  a  stranger,  the  law  will  imply  a  promise 
on  the  part  of  the  parent  to  pay  for  them." 

Without  further  citation  of  authorities,  we  announce  as  our  con- 
clusions that  it  is  the  legal  as  well  as  moral  duty  of  parents  to 
furnish  necessary  support  to  their  children  during  minority;  that 
a  parent  cannot  be  charged  for  necessaries  furnished  by  a  stranger 
for  his  minor  child,  except  upon  an  express  or  implied  promise  to 
pay  for  the  same ;  and  that  such  promise  may  be  inferred  on  the 
grounds  of  the  legal  duty  imposed. 

2.  It  is  further  contended  on  behalf  of  appellant  that  the  facts 
certified  show  an  emancipation  of  his  daughter,  such  as  to  relieve 


170  DUTIES   AND   LIABILITIES    OP  PARENTS 

him  from  liability  for  the  services  sued  for;  that  support  and, serv- 
ices are  reciprocal  duties,  and  if  one  is  withheld  the  other  may 
be  withdrawn.  Parents  are  entitled  to  the  care,  custody,  control, 
and  services  of  their  children  during  minority.  To  emancipate  is  to 
release;  to  set  free.  It  need  not  be  evidenced  by  any  formal  or  re- 
quired act.  It  may  be  proven  by  direct  proof  or  by  circumstances. 
To  free  a  child,  for  all  the  period  of  minority,  from  care,  custody, 
control,  and  service  would  be  a  general  emancipation ;  but  to  free 
him  from  only  a  part  of  the  period  of  minority,  or  from  only  a  part 
of  the  parent's  rights,  would  be  limited.  The  parent,  having  the 
several  rights  of  care,  custody,  control,  and  service  during  minority, 
may  surely  release  from  either  without  waiving  his  right  to  the 
other,  or  from  a  part  of  the  time  without  waiving  as  to  the  whole. 
A  father  frees  his  son  from  service.  That  does  not  waive  the  right 
to  care,  custody,  and  control,  so  far  as  the  same  can  be  exercised 
consistently  with  the  right  waived.  He  frees  his  son  of  18  from 
service  for  one  year.  That  does  not  waive  the  right  to  his  services 
after  the  year;  and  if  the  waiver  has  been  for  an  indefinite  period 
the  parent  may  asseft~hTs  right  to  the  services  of  the  child  at  any 
time  within  the  period  of  minority,  subject  to  the  rights  of  those 
who  have  contracted  with  the  child  on  the  strength  of  the  waiver 
as  to  services.     *     *     * 

The  circumstances  disclosed  in  this  case  are  such  as  are  of  fre- 
quent occurrence  in  this  country.  Parents,  either  from  necessity 
or  from  a  desire  to  teach  their  children  to  be  industrious  and  self- 
supporting,  emancipate  them  from  service,  for  a  definite  or  indefi- 
nite time,  without  any  intention  of  thereby  releasing  their  right  to 
exercise  care,  custody,  and  control  over  the  child.  The  obliga- 
tion of  parents  to  support  their  minor  children  does  not  arise  alone 
out  of  the  duty  of  the  child  to  serve.  If  so,  those  who  are  unable 
to  render  service  because  of  infancy,  sickness,  or  accident — who, 
most  of  all  others,  need  support — would  not  be  entitled  to  it. 
Blackstone,  in  his  Commentaries  (volume  1,  p.  446),  says:  "The 
duty  of  parents  to  provide  for  the  maintenance  of  their  children 
is  a  principle  of  natural  law — an  obligation,  says  Puffendorf,  laid 
on  them,  not  only  by  Nature  herself,  but  by  their  own  proper  act 
in  bringing  them  into  the  world ;  for  they  would  be  in  the  highest 
manner  injurious  to  their  issue  if  they  only  gave  their  children 
life  that  they  might  afterwards  see  them  perish.  By  begetting 
them,  therefore,  they  have  entered  into  a  voluntary  obligation  to 
endeavor,  as  far  as  in  them  lies,  that  the  life  which  they  have  be- 
stowed shall  be  supported  and  preserved.  And  thus  the  children 
will  have  the  perfect  right  of  receiving  maintenance  from  their  par- 
ents." This  obligation  to  support  is  not  grounded  on  the  duty  of 
the  child  to  serve,  but  rather  upon  the  inability  of  the  child  to  care 
for  itself.  It  is  not  only  a  duty  to  the  child,  but  to  th<_  public.  The 
duties  extend  only  to  the  furnishing  of  necessaries.    What  are  nee- 


parent's  duty  to  maintain  child  171 

essaries  must  be  determined  by  the  facts  in  each  case.  The  law 
has  fixed  the  age  of  majority;  and  it  is  until  that  age  is  attained 
that  the  law  presumes  the  child  incapable  of  taking  care  of  itself, 
and  has  conferred  upon  the  parent  the  right  to  care,  custody,  con- 
trol, and  services,  with  the  duty  to  support. 

3.  There  being  no  direct  evidence  as  to  the  purposes  of  the  de- 
fendant with  respect  to  his  daughter,  we  are  to  say  with  what  in- 
tention he  consented  to  his  daughter's  going  and  remaining  away 
from  his  home  as  she  did.  That  he  intended  she  should  control 
her  own  earnings,  at  least  until  such  time  as  he  should  declare 
otherwise,  is  evident;  but  that  it  was  ever  his  intention  that  if,  by 
sickness  or  accident,  she  should  be  rendered  unable  to  support  her- 
self, he  would  not  be  responsible  to  those  who  might  minister  to 
her  actual  necessities,  we  do  not  believe.  Such  an  inference  from 
these  facts  would  be  a  discredit  to  any  father.  In  our  view,  there 
was,  at  most,  but  a  partial  emancipation — an  emancipation  from 
service  for  an  indefinite  time.  Th£^her_had  a^ri^^ht  at^  any  tim 
to  require  the  daughter  to  return  to  his  home  and  service;  and  she 
had  a  right  at  any  time  to  return  to  his  service,  and  to  claim  his 
care,  custody,  control,  and  support.  There  was  no  such  an  emanci- 
pation as  exempted  the  father  from  liability  for  actual  necessaries 
furnished  to  his  daughter.  In  view  of  the  legal  as  well  as  the  moral 
duty  of  appellant  to  furnish  necessary  support  to  his  daughter  dur- 
ing minority,  and  especially  when  unable,  from  infancy,  disease,  or 
accident,  to  earn  her  ovi^n  necessary  support,  we  think  he  may  well 
be  understood  as  promising  payment  to  any  third  person  for  ac- 
tual necessaries  furnished  to  her. 

As  already  stated,  what  are  necessaries  must  be  determined  from 
the  facts  of  each  case.  What  would  be  necessary  support  to  a  child 
in  sickness  would  not  be  necessary  in  health.  The  services  sued 
for  were  evidently  necessary  for  the  support  and  well-being  of  the 
defendant's  daughter.  As  we  have  seen, Jie^  had  not  relieved  him- 
self from  the  duty  to  furnish  her  such  support,  and,  from  his  ob- 
iTgatTon  to  do  so,  may  be  presumed  to  have  promised  payment  to 
any  one  who  did  furnish  it  in  his  absence.  Our  conclusion  is  that 
the  judgment  of  the  district  court  should  be  affirmed.  ° 

«  As  to  emancipation  of  cliild,  see  Round  Bros.  v.  McDaniel,  post,  p.  193. 

As  to  liability  of  infant  on  liis  own  contracts  for  necessaries,  see  Kilgore 
V.  Rich,  post,  p.  257 ;  Mauld.in  v.  Southern  Shorthand  &  Business  University, 
post,  p.  259. 

Liability  of  father  for  support  of  child,  after  divorce,  see  Gilley  v.  Gilley, 
79  Me.  292,  9  Atl.  623.  1  Am.  St.  Rep.  307  (1887) ;  Brown  v.  Smith,  19  R. 
I.  319,  33  Atl.  466,  30  L.  R.  A.  680  (1895);  Ramsey  v.  Ramsey,  121  Ind. 
215,  23  N.  E.  69,  6  L.  R.  A.  682  (1889). 


172  DUTIES   AND   LIABILITIES   Or   PARENTS 


II.  Contracts  by  Child  as  Parent's  Agent* 


McCRADY  V.  PRATT. 
(Supreme  Court  of  Michigan,  1904.    138  Mich.  203, 101  N.  W.  227.) 

Action  by  Eliza  McCrady  against  Stephen  N.  Pratt.  From  a 
judgment  in  favor  of  plaintiff,  defendant  brings  error.     Reversed. 

Montgomery,  J.  The  plaintiff  recovered  a  verdict  and  judgment 
of  $50.25  for  boarding  the  defendant's  son.  The  theory  upon  which 
the  case  was  submitted  to  the  jury  may  be  best  stated  by  quoting 
the  charge  of  the  circuit  judge: 

"It  is  claimed  on  the  part  of  the  plaintiff  that  the  defendant's 
son,  Charles  M.  Pratt,  with  the  knowledge  and  consent  of  the  de- 
fendant, and  at  his  request,  came  to  the  plaintiff's  boarding  house 
and  requested  board,  and  said  that  his  father  would  pay  for  it,  as 
he  was  learning  the  drug  business  and  did  not  earn  much  m.oney. 
It  is  claimed  by  the  plaintiff  that  she  relied  upon  these  represen- 
tations and  boarded  the  defendant's  son,  and  that  at  one  time  when 
he  was  sick  that  she  nursed  him  and  took  care  of  him  about  two 
weeks;  that  he  remained  with  her  something  like  a  year,  when  he 
began  to  run  behind  in  his  board  bill,  and  shortly  afterwards  left 
the  city.  The  plaintiff  further  claims  that  the  defendant,  Stephen 
Pratt,  the  boy's  father,  afterwards  came  to  the  city  of  Grand  Rapids, 
and  that  she  saw  him  and  had  a  talk  with  him  about  the  balance 
due  her  for  the  board  of  his  son.  Plaintiff  further  claims  that  in 
this  conversation  defendant  admitted  that  he  had  told  his  son  to 
come  to  Grand  Rapids  and  select  a  boarding  place,  and  that  he 
would  pay  his  board  until  he  was  twenty-one  years  old.  On  the 
part  of  the  defendant  it  is  claimed  that  he  never  agreed  to  pay  for 
his  board,  or  any  part  of  it;  that  he  never  authorized  his  son  to 
procure  board  from  the  plaintiff;  and  that  he  did  not  agree  to  pay 
any  of  the  boy's  board  after  he  became  twenty-one  years  of  age. 
Now,  as  a  matter  of  law,  I  charge  you  that  a  father  is  not  ordina- 
rily liable  for  the  board  furnished  to  his  son,  unless  he  agrees  to  pay 
the  same ;  and  I  charge  you  that  unless  you  find  that  the  father  told 
the  son  to  pick  out  a  good  boarding  house,  and  that  he  would  pay 
his  board,  the  father  is  not  liable.  That  is,  the  defendant  in  this 
case  is  not  liable.  But  should  you  find  from  the  evidence  in  the 
case  that  the  defendant  did  agree  to  pay  his  son's  board,  then  he  is 
liable,  and  the  plaintiff  should  recover.  The  burden  of  proof  to 
prove  this  agreement  rests  upon  the  plaintiff.     She  must  satisfy 

*  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3(1  Ed.) 
§  118. 


CONTRACTS    BY    CHILD   AS   PAREXX'S   AGENT  173 

your  minds  by  a  fair  preponderance  of  evidence  that,  at  the  time 
this  son  came  to  her  boarding  house,  he  was  authorized  by  the 
father  to  procure  board  upon  the  father's  credit,  and  that  she 
boarded  the  son,  relying  upon  the  father  as  the  paymaster,  and  upon 
him  alone." 

This  instruction  fairly  states  the  rule  of  law.  The  serious  ques- 
tion, however,  is  whether  there  is  a  basis  for  a  finding  that  the  son 
had  authority  to  bind  the  defendant  for  his  board  after  he  be- 
came 21  years  of  age.  There  is  no  proof  in  the  record  that  the 
defendant  agreed  with  plaintiff,  or  any  one  acting  for  her,  to  pay 
his  son's  board  for  any  period  whatever.  The  only  evidence  of  any 
agreement  to  pay  the  son's  board  for  any  time  is  found  in  defend- 
ant's statement  to  plaintiff  as  testified  to  by  her,  which  was,  in  sub- 
stance, that  defendant  had  agreed  with  his  son  to  pay  his  board 
until  he  was  21.  The  payments  for  the  son's  board  were  made  by 
remittances  of  the  father  to  the  son.  Xhere  was  no  privity  be- 
tween defendant  and  plaintiff,  unless  it  be  said  that  the  promise  of 
defendant  to  his  son  carried  with  it  authority  for  the  son  to  pledge 
his  father's  credit.  Such  an  interpretation  of  the  testimony  would 
be  of  doubtful  accuracy  at  best,  but,  if  it  be  adopted,  that  authority 
was  clearly  limited  to  the  period  covered  by  the  promise  to  the  son. 
In  other  words,  if  there  was  an  agency  created,  it  was  a  special 
agency,  and  any  attempt  to  bind  the  defendant  for  the  son's  board 
after  the  latter  reached  his  majority  was  in  excess  of  the  authority 
granted. 

This  is  not  a  case  in  which  the  agent  has  been  held  out  as  hav- 
ing authority  beyond  that  actually  given  to  him.  There  was  no 
communication  whatever  between  the  plaintiff  and  defendant,  and, 
as  the  defendant  during  his  son's  minority  sent  the  money  to  pay 
his  board  bills  to  the  son,  there  is  no  evidence  of  any  satisfaction 
of  the  alleged  contract  by  which  the  latter  undertook  to  bind  him. 
The  plaintiff's  case  rests  finally  upon  the  son's  representations  of 
his  authority.  That,  under  the  circumstances  of  this  case,  an  al- 
leged principal  cannot ~be"5ound  by  the  false  representations  of  an 
assumed  agent  as  to  his  authority,  is  well  settled.  Mechem  on 
Agency,  §  100;  Rice  v.  Peninsular  Club,  52  Mich.  87,  17  N.  W.  708; 
Swanstrom  v.  Improvement  Co.,  91  Mich.  367,  51  N.  W.  941. 

The  judgment  is  reversed  and  a  new  trial  ordered. 


174  DUTIES  AND  LIABILITIES  OF  PARENTS 


III.  Parent's  Liability  for  Child's  Torts  * 


LESSOFF  V.  GORDON. 

(Court  of  Civil  Appeals  of  Texas,  1909.     124  S.  W.  182.) 

McMeans,  J."  Suit  by  appellant,  Adelia  Lessoff,  against  ap- 
pellee, S.  P.  Gordon,  to  recover  damages  for  personal  injuries  sus- 
tained by  appellant  by  reason  of  being  run  over  by  a  cow  belong- 
ing to  appellee  which  was  being  driven  on  the  streets  of  the  city 
of  Galveston  by  appellee's  minor  son.  *  *  *  The  case  was  tried 
before  the  court  without  a  jury,  and  after  hearing  the  evidence  the 
court  rendered  judgment  in  favor  of  defendant,  and  plaintiff  ap- 
peals. 

At  the  request  of  the  plaintiff,  the  court  filed  its  findings  of  fact, 
which  are  as  follows :  "Plaintiff  and  defendant  are  both  residents 
of  the  city  and  county  of  Galveston,  Tex.  That  the  plaintiff  is  a 
widow,  about  42  years  of  age,  and  earns  her  livelihood  by  means 
of  sewing.  That  she  has  no  other  means  of  making  a  living.  That 
on  or  about  the  3d  of  September,  1908,  she  was  run  into  and 
knocked  down  by  a  cow  belonging  to  the  defendant.  *  *  * 
That  as  a  result  of  the  injuries  sustained  she  suft'ered  considerable 
pain,  physical  and  mental.  That  since  the  injury  she  has  been  un- 
able to  do  work  of  any  character  towards  making  a  living  for  her- 
self." 

The  court  further  finds  the  facts  to  be:  "That  the  defendant, 
S.  P.  Gordon,  was  the  owner  of  the  cow  which  injured  Mrs.  Adelia 
Lessoff,  the  plaintiff.  That  the  defendant  had  owned  the  cow  for 
about  four  years,  during  which  time  the  cow  was  never  known 
to  develop  any  vicious  habits,  but,  on  the  contrary,  was  a  gentle 
cow.  That  the  defendant  kept  the  cow  at  his  residence.  *  *  * 
That  on  the  day  of  plaintiff's  injuries  the  defendant,  Gordon,  was 
absent  from  home.  That  when  he  left  home  the  cow  v/as  safely 
inclosed.  That  about  4  o'clock  in  the  afternoon  of  September  3, 
1908,  some  negro  boys  were  playing  baseball  in  a  lot  near  the  de- 
fendant's cow  lot,  when  one  of  the  boys  knocked  a  ball  into  the 
defendant's  cow  lot.  That  one  of  the  said  negro  boys  climbed  the 
fence  into  the  said  cow  lot  for  the  purpose  of  recovering  the  ball. 
That  in  leaving  the  cow  lot  the  negro  boy  opened  the  gate,  and  the 
boy  and  the  cow  came  out  of  the  gate  about  the  same  time.    That 

5  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
I  12L 

6  Part  of  tbe  opinion  is  omitted. 


parent's  liabilitt  for  child's  torts  its 

a  few  minutes  thereafter  defendant's  minor  son,  Herbert  Gordon, 
who  was  playing  near  by  with  other  boys,  but  not  with  the  negro 
boys  heretofore  mentioned,  saw  the  cow  leave  the  lot,  and  immedi- 
ately ran  home  and  secured  a  horse,  which  he  mounted  and  at- 
tempted to  drive  the  cow  back  into  the  lot,  and  in  doing  this  the  cow 
traversed  through  several  streets,  in  a  trot,  in  the  neighborhood, 
during  which  time  the  said  cow  hooked  or  butted  the  plaintiff,  as 
heretofore  recited.     *     *     *     That  the  defendant's  son  had  no  ex- 
perience in  driving  cattle  and  testified  that  this  was  the  first  time 
that  he  had  ever  been  on  horseback.     That  defendant's  son  left 
his  home  in  express  violation  of  his  mother's  wishes ;   his  mother, 
at  the  time  of  his  leaving  in  pursuit  of  the  cow,  calling  to  him  to 
come  back.    That  his  father  was  not  at  home  at  the  time  and  had 
given  the  son  no  instruction  in  the  premises.     *     *     *     That  the 
defendant's  son,  Herbert  Gordon,  is  14  years  of  age  and  attends 
school.    That  he  did  not  have  charge  of  the  cow  and  never  attended 
her,  except  occasionally  to  give  her  some  hay.     He  does  not  milk 
the  cow.    The  boy  lives  at  home  with  his  father  and  does  not  work 
other  than  to  do  errands  around  the  home.    He  does  those  things 
which  his  father  tells  him  to  do  if  he  feels  like  it.     It  is  not  his 
duty  to  look  after  things  about  the  place  when  his  father  is  absent 
from  home.     Defendant  owned  the  horse  on  which  his  son  was 
riding.     Defendant  testified  that,  if  the  cow  got  out  during  his  ab- 
sence, it  would  not  be  a  part  of  his  son's  duty  to  drive  her  home 
andj)ack  into  the  lot.     *     *     * " 

Upon  the  foregoing  findings  of  fact,  the  court  concluded,  as  a 
matter  of  law,  that  the  evidence  disclosed  no  liability  of  appellee 
for  the  injuries  sustained  by  appellant. 

Appellant,  by  her  second  assignment  of  error,  complains  that 
"the  court  erred  in  concluding  as  a  matter  of  law  that  there  was 
no  liability  on  the  part  of  defendant  to  plaintiff  for  the  injury  she 
sustained  by  reason  of  the  collision  with  the  cow  of  defendant 
while  being  driven  in  the  manner  and  at  the  time  and  place  as 
shown  by  the  evidence,  and  the  court's  findings  of  fact."  In  the 
proposition  following  she  urges  that  "a  father  is  liable  for  the  torts 
of  his  minor  son  who  is  living  with  him  and  under  his  direction, 
when  such  tort  is  committed  by  the  son  while  using  such  father's 
horse,  in  and  about  his  father's  business."  Appellant  contends  that, 
while  a  father  is  not  liable  for  the  torts  of  his  minor  son  by  rea- 
son alone  of  such  domestic  relation,  the  facts  in  this  case  show  lia- 
bility on  the  part  of  appellee  for  the  tort  of  his  minor  son  upon  the 
principle  of  master  and  servant,  and  that  this  case  should  be  de- 
termined by  the  rules  applicable  to  that  relation. 

It  seems  well  settled  that  at  common  law  the  father  is  not  liable 
for  the  torts  of  his  child  committed  without  his  knowledge,  con- 
sent, participation,  or  sanction,  and  not  in  the  course  of  his  employ- 


176  DUTIES   AND   LIABILITIES   OF   PARENTS 

ment  of  the  child.  Ritter  v.  Thibodeaux,  41  S.  W.  492 ;  Chandler 
v.  Deaton,  Z7  Tex.  406;  Schouler,  Dom.  Rel.  §  263;  29  Cyc.  1665. 
If  then  the  appellee  can  be  held  liable  for  the  act  of  his  son  in  caus- 
ing appellant's  injuries,  the  liability  does  not  grow  out  of  the  re- 
lation of  parent  and  child,  but  must  be  based  on  the  relation  of 
master  and  servant,  and  is  governed  by  rules  applicable  to  such 
relation.  29  Cyc.  1665.  It  is  stated  to  be  the  universal  rule  that, 
whether  the  act  of  the  servant  be  of  omission  or  commission,  wheth- 
er his  negligence,  or  even  wrongful  misconduct,  occasion  the  in- 
jury, so  long  as  it  be  done  in  the  scope  of  his  employment,  his 
master  is  responsible  in  damages  to  third  persons.  And  it  makes 
no  difference  that  the  master  did  not  give  special  orders;  that  he 
did  not  authorize,  or  even  know,  of  the  servant's  act  or  neglect; 
for,  even  though  he  disapproved  or  forbade  it,  so  long  as  the  act 
was  done  in  the  scope  of  the  servant's  employment,  he  is  none  the 
less  liable.     Schouler,  Dom.  Rel.  490. 

But  the  rule  of  the  master's  liability  for  the  acts  of  his  servant 
does  not  extend  to  unauthorized  acts,  not  connected  with,  incident 
to,  or  within  the  real  or  apparent  scope  of  the  employment.  If 
therefore  the  servant  does  an  act  not  necessary  to  or  arising  prop- 
erly from  his  service  and  the  reasonable  scope  thereof,  whereby  an 
injury  is  inflicted  upon  the  person  of  another,  the  servant  alone  is 
liable,  for  the  master  cannot  be  held  in  law  to  contemplate  any 
extraordinary  act  of  his  servant  not  authorized  directly  or  indi- 
rectly, and  which  is  outside  of  and  unnecessary  to  a  proper  per- 
formance of  the  service.  The  criterion  for  determining  the  mas- 
ter's liability  in  such  cases  is  to  ascertain  if  the  act  was  done  within 
the  real  or  apparent  scope  of  the  authority  of  the  master.  Rogers, 
Dom.  Rel.  §  795. 

The  court,  in  its  findings  of  fact,  which  are  not  challenged  by  the 
assignment  of  error,  finds:  That  the  act  of  appellee's  son  which 
resulted  in  injury  to  the  appellant  was  done  without  the  knowledge 
of  the  father  and  against  the  express  wishes  of  his  mother;  that 
appellee  had  given  the  boy  no  instructions  in  the  premises;  that 
the  boy  did  not  have  charge  of  the  cow,  and  that  he  never  attended 
to  her,  except  to  give  her  hay  occasionally. 

We  think  the  evidence  wholly  insufficient  to  show  that  the  acts 
of  the  boy  were  within  the  scope  of  any  duty  or  service  exacted 
of  him  by  the  appellee,  or  to  show  facts  which  authorize  a  judg- 
ment against  appellee  for  the  act  of  his  son  based  on  the  relation 
of  master  and  servant,  and  that  under  the  facts  found  by  the  court 
judgment  was  properly  rendered  for  appellee. 

This  conclusion  relieves  us  from  the  necessity  of  passing  upon 
the  only  other  question  raised  by  appellant's  assignment  of  error. 
The  judgment  of  the  court  below  is  affirmed. 


parent's  liability  for  child's  torts  177 

BRITTINGHAM  v.  STADIEM. 
(Supreme  Court  of  North  Carolina,  1909.     151  N.  C.  299,  66  S.  E.  128.) 

Action  by  J.  C.  Brittingham  against  B.  Stadiem  and  another  to 
recover~damages  for  injuries  received  by  him  while  on  business  in 
the  store  owned  by  the  female  defendant,  B.  Stadiem,  from  a  pistol 
shot  wound  inflicted  by  the  12  year  old  son  and  an  employe  of  the 
defendants,  while  carelessly  handling  the  pistol.  Judgment  was 
rendered  against  the  defendants,  from  which  they  appealed  to  this 
court. 

Manning,  J.'^  If  the  feme  defendant,  Bettie  Stadiem,  is  answer- 
able to  the  plaintiff  for  the  damages  resulting  from  the  tort  alleged, 
then  the  defendant  D.  Stadiem,  her  husband,  living  with  her  at  the 
time,  is  jointly  liable.  Revisal  1908,  §  2105 ;  Roberts  v.  Lisenbee, 
86  N.  C.  136,  41  Am.  Rep.  450.  The  tortious  act  alleged  having 
been  committed  by  Moses  Stadiem,  the  12  year  old  son  of  the  de- 
fendants, the  first  question  presented  is  the  liability  of  the  defend- 
ants by  virtue  of  this  relationship.  "Relationship  does  not  alone 
make  a  father  answerable  for  the  wrongful  acts  of  his  minor  child. 
There  must  be  something  besides  relationship  to  connect  him  with 
such  acts  before  he  becomes  liable.  It  must  be  shown  that  he  ap- 
proved such  acts,  or  that  the  child  was  his  servant  or  agent."  John- 
son v.  Glidden,  74  Am.  St.  Rep.  795,  in  the  note  to  which  a  large 
number  of  the  decisions  of  the  American  courts  are  collected  by 
Mr.  Freeman;  Mirich  v.  Suchy,  74  Kan.  715,  87  Pac.  1141;  Chas- 
tain  v.  Johns,  120  Ga.  977,  48  S.  E.  343,  66  L.  R.  A.  958;  Evers 
V.  Krouse,  70  N.  J.  Law,  653,  58  Atl.  181,  66  L.  R.  A.  592;  21  Am. 
&  Eng.  Enc.  1057.  Wherever  the  principles  of  the  common  law 
prevail  this  is  the  well-established  doctrine. 

If  there  were  in  this  case  nothing  more  than  the  relationship 
to  connect  the  parent  with  the  wrongful  act  of  his  child,  we  v/ould 
be  constrained  to  reverse  the  judgment  and  hold  that  defendants 
were  not  liable.  The  complaint,  however,  proceeds  upon  a  two- 
fold theory,  and  evidence  was  produced  at  the  trial  to  support  it, 
to  wit:  (1)  That  the  boy,  Moses  Stadiem,  was  the  servant  and 
employe  of  the  defendant,  doing  work  in  the  store  as  clerk,  and 
the  injury  to  plaintiff  was  caused  by  the  negligent  and  careless  act 
of  this  servant,  while  about  his  master's  business  and  while  doing 
an  act  he  was  directed  to  do.  (2)  That  the  defendant,  as  a  p'^.rt 
of  her  business,  conducted  a  pawnbroker's  shop,  and  received  in 
pawn  various  articles,  among  them  pistols,  which  she  also  carried 
in  stock  for  sale,  and  that  these  dangerous  weapons  were  care- 
lessly and  negligently  permitted  to  lie  on  the  counters  and  in  the 

»  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  rewritten. 
COOLEY  P.&  D.Rel.— 12 


178  DUTIES   AND   LIABILITIES   OF   PARENTS 

windows  of  the  store,  within  reach  of  a  boy  of  the  size  of  Moses 
Stadiem,  and  that  he  "fooled  with  them." 

The  immediate  circumstances  of  the  injury  are  thus  described 
by  the  plaintiff:  "I  went  into  the  store  to  pawn  my  watch.  I  was 
to  receive  $7.  The  man  went  to  get  the  money  for  me  and  laid  it 
down  on  the  counter,  and,  just  as  I  was  in  the  act  of  picking  it 
up,  a  pistol  went  off.  *  *  *  j  turned  to  see  where  the  shot 
came  from,  and  there  was  a  boy  standing  in  front  of  me  with  the 
smoking  pistol  in  his  hand.  At  the  time  I  was  shot,  Stadiem  grab- 
bed the  boy  and  told  him :  'I  have  been  telling  you  about  fooling 
with  pistols.'  "  The  plaintiff  further  testified  that  the  boy  had  been 
waiting  on  customers,  and  asked  his  father  what  he  was  going  to 
let  him  have  on  the  watch.  Another  witness  for  the  plaintiff  tes- 
tified that  he  had  seen  the  boy  in  the  store,  selling  goods  and  han- 
dling them,  and  behind  the  counter,  and  that  there  were  a  lot  of 
guns  and  pistols  lying  on  the  counters  and  in  the  windows,  so  that 
anybody  that  wanted  to  could  handle  them. 

The  boy  Moses,  testified:  That  a  man  came  to  pawn  a  pistol. 
Then  plaintiff  came  in.  "Before  loaning  the  money,  we  wanted  to 
see  whether  it  was  all  right.  I  snapped  it  to  see,"  and  it  fired. 
Phelps,  another  clerk  in  the  store,  stated:  That,  while  he  was 
making  out  the  pawn  ticket,  he  told  the  boy  to  bring  the  pistol  to 
him,  and,  while  he  was  bringing  it,  it  fired;  that  the  man  who 
pawned  it  said  it  was  not  loaded ;  that  he  did  not  examine  it,  but 
laid  it  on  the  counter  and  was  waiting  on  plaintiff.  The  evidence 
produced  at  the  trial,  as  to  the  employment  of  the  boy  to  aid  in 
the  work  of  the  store  as  clerk,  was  sufficient  to  carry  the  case  to 
the  jury,  and  it  was  for  them  to  determine  the  fact.  Wood  on  Mas- 
ter &  Servant,  p.  584;   Perry  v.  Ford,  17  Mo.  App.  212. 

Passing  the  sufficiency  of  the  evidence  to  establish  the  additional 
relation  of  master  and  servant  to  that  of  parent  and  child,  we  will 
consider  the  duty  of  the  defendant,  the  proprietor  of  the  store,  to 
the  plaintiff,  a  customer,  while  in  the  store.  In  Swinarton  v.  Le 
Boutillier,  7  Misc.  Rep.  639,  28  N.  Y.  Supp.  53,  the  duty  is  thus  de- 
clared :  "We  hold,  furthermore,  that  having  invited  the  plaintiff 
into  his  store  for  his  benefit,  and  having~authorized  and  induced  her 
to  confide  in  the  good  conduct  of  his  servants  to  whom,  in  the  trans- 
action of  his  business,  he  committed  her,  he  thereby  assumed  the 
duty,  by  the  exercise  of  reasonable  care,  of  protecting  her  from 
injury  by  the  misconduct  of  such  servants,  and  that  he  is  answer- 
able to  her  for  any  injury  she  has  sustained  by  such  misconduct." 
In  Mattson  v.  Minn.  &  N.  W.  R.  Co.,  95  Minn.  477,  104  N.  W.  443, 
70  L.  R.  A.  503,  111  Am.  St.  Rep.  483,  it  is  held:  "The  degree  of 
care  required  of  persons  having  the  possession  and  control  of  dan- 
gerous explosives,  such  as  firearms  or  dynamite,  is  of  the  highest. 
The  utmost  caution  must  be  used  in  their  care  and  custody,  to  the 


parent's  liability  for  child's  torts  179 

end  that  harm  may  not  come  to  others  from  coming  in  contact  with 
them.  The  degree  of  care  must  be  commensurate  with  the  danger- 
ous character  of  the  article."  The  same  doctrine  is  held  by  this 
court.  Haynes  v.  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  26  L.  R.  A. 
810,  41  Am.  St.  Rep.  786;  Witsell  v.  Railway  Co.,  120  N.  C.  557, 
27  S.  E.  125;  Ross  v.  Cotton  Mills,  140  N.  C.  115,  52  S.  E.  121,  1 
L.  R.  A.  (N.  S.)  298;  Home  v.  Power  Co.,  144  N.  C.  375,  57  S.  E. 
19;  McGhee  v.  Railroad,  147  N.  C.  142,  60  S.  E.  912,  24  L.  R.  A. 
(N.  S.)  119.  See,  also,  Galveston,  H.  &  S.  A.  R.  Co.  v.  Currie,  100 
Tex.  136,  96  S.  W.  1073,  10  L.  R.  A.  (N.  S.)  367,  and  "subject  note," 
where  the  American  and  English  cases  are  collected  and  digested. 

In  Cooley  on  Torts,  star  page  539,  the  learned  author  lays  down 
this  generally  accepted  doctrine:  "It  is  immaterial  to  the  master's 
responsibility  that  the  servant,  at  the  time,  was  neglecting  some 
rule  of  caution  which  the  master  had  prescribed,  or  was  exceeding 
his  master's  instructions,  or  was  disregarding  them  in  some  par- 
ticular, and  the  injury  which  actually  resulted  is  attributable  to 
the  servant's  failure  to  observe  the  directions  given  him."  In  the 
case  of  Dixon  v.  Bell,  5  Maule  &  S.  198,  the  facts  were  that  the 
defendant,  being  possessed  of  a  loaded  gun,  sent  a  young  servant 
girl  to  fetch  it,  with  directions  to  a  man  named  Leman,  who  had 
charge  of  it,  to  take  the  primings  out,  which  was  accordingly  done. 
The  girl  presented  it,  in  play,  at  the  plaintift's  son  and  drew  the 
trigger,  when  the  gun  fired  and  inflicted  the  injury  for  which  dam- 
ages were  sought.  Lord  Ellenborough,  C.  J.,  said:  "The  defend- 
ant might  and  ought  to  have  gone  farther.  It  was  incumbent  on 
him,  who,  by  charging  the  gun,  had  made  it  capable  of  doing  mis- 
chief, to  render  it  safe  and  innoxious.  This  might  have  been  done 
by  the  discharge  or  drawing  of  the  contents ;  and  though  it  was 
the  defendant's  intention  to  prevent  all  mischief,  and  he  expected 
this  would  be  effectuated  by  taking  out  the  priming,  the  event  has 
unfortunately  proved  that  the  order  to  Leman  was  not  sufficient. 
Consequently,  as  by  his  want  of  care  the  instrument  was  left  in 
a  state  capable  of  doing  mischief,  the  law  will  hold  the  defendant 
responsible.  It  is  a  hard  case,  undoubtedly,  but  I  think  the  action 
is  maintainable." 

Applying  these  principles  to  the  evidence  in  this  case,  it  will  be 
seen  that  the  defendant  was  liable  because  of  the  negligent  act  of 
her  servant  while  doing  work  within  the  scope  of  his  employment, 
and  that  the  defendant  was  negligent  in  intrusting  to  a  servant  of 
12  years  of  age  such  a  dangerous  instrument  as  a  pistol,  without 
being  careful  to  make  it  "innoxious."  *  *  ♦  The  judgment  is 
affirmed.® 

8  Liability  of  child  for  his  own  torts,  see  Young  v.  Muhling,  post,  p.  282, 
and  Churchill  v.  White,  post,  p.  285. 


180  EIGHTS  OF  PARENTS  AND    OF  CHILDREN 


RIGHTS  OF  PARENTS  AND  OF  CHILDREN 
I.  Parent's  Right  to  Correct  Child  ^ 


McKELVEY  V.  McKELVEY. 

(Supreme  Court  of  Tennessee,  1903.     Ill  Tenn.  388,  77  S.  W.  664,  64  L.  R. 

A.  991,  102  Am.  St.  Rep.  787.) 

Action  by  Nellie  McKelvey,  by  her  next  friend,  against  W.  J. 
McKelvey  and  another.  Judgment  for  defendants,  and  plaintiff 
appeals. 

Beard,  C.  J.^  This  is  a  suit  instituted  by  a  minor  child,  b}'  next 
friend,  against  her  father  and  stepmother,  seeking  to  recover  dam- 
ages for  cruel  and  inhuman  treatment  alleged  to  have  been  in- 
flicted upon  her  by  the  latter  at  the  instance  and  with  the  consent 
of  the  father.  Upon  demurrer  the  suit  was  dismissed,  and,  the 
case  being  properly  brought  to  this  court,  error  is  assigned  upon 
this  action  of  the  trial  judge. 

We  think  there  was  no  error  in  this  dismissal.  At  common  law 
the  right  of  the  father  to  the  control  and  custody  of  his  infant  child 
grew  out  of  the  corresponding  duty  on  his  part  to  maintain,  pro- 
tect, and  educate  it.  These  rights  could  only  be  forfeited  by  gross 
misconduct  on  his  part.  The  right  to  control  involved  the  sub- 
ordinate right  to  restrain  and  inflict  moderate  chastisement  upon 
the  child.  Jn^^case  parental  power  was  abijsed,  the  child  had  no 
civil  remedy  against  the  father  for  the  personal  injuries  inflicted. 
Whatever  redress  was  afforded  in  such  case  was  to  be  found  in  an 
appeal  to  the  criminal  law  and  in  the  remedy  furnished  by  the  writ 
of  habeas  corpus.  So  far  as  we  can  discover,  this  rule  of  the  com- 
mon law  has  never  been  questioned  in  any  of  the  courts  of  this 
country,  and  certainly  no  such  action  as  the  present  has  been  main- 
tained in  these  courts. 

It  is  true  that  no  less  celebrated  an  authority  than  Judge  Cooley, 
in  the  second  edition  of  his  work  on  Torts,  at  page  171,  observes 
that  "in  principle  there  seems  to  be  no  reason  it  should  not  be  sus- 
tained." No  case,  however,  is  cited  in  support  of  this  text.  In 
fact,  the  only  case  which  the  diligence  of  counsel  has  been  able 
to  find  in  which  this  particular  question  has  been  discussed  is  that 
of  Hewlett  v.  George,  Ex'r,  reported  in  68  Miss.  703,  9  South.  885, 
13  L.  R.  A.  682.     It  is  there  said :   "So  long  as  the  parent  is  under 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  124. 
2  Part  of  the  opinion  is  omitted. 


parent's  right  to  correct  child  181 

obligation  to  care  for,  guide,  and  control,  and  the  child  is  under 
reciprocal  obligation  to  aid  and  comfort  and  obey,  no  such  action 
as  this  can  be  maintained.  The  peace  of  society,  and  of  the  fam- 
ilies composing  society,  and  of  a  sound  public  policy  designed  to 
subserve  the  repose  of  families  and  the  best  interests  of  society, 
forbid  to  the  minor  child  a  right  to  appear  in  court  in  the  assertion 
of  a  claim  to  civil  redress  for  personal  injuries  suffered  at  the  hands 
of  the  parent.  The  state,  through  its  criminal  laws,  will  give  the 
minor  children  protection  from  parental  violence  and  wrongdoing, 
and  this  is  all  the  child  can  be  heard  to  demand." 

The  fact  that  the  cruel  treatment  in  this  case  was  inflicted  by  a 
stepmother  can  malce  no  difference,  for,  whether  inflicted  in  the 
presence  of  the  father  or  not,  if  the  action  could  be  maintained  at 
all,  he  would  be  responsible  for  the  tort.  If  inflicted  in  his  pres- 
ence, he  alone  would  be  responsible,  nothing  appearing  to  repel 
the  presumption  that  it  was  the  result  of  his  coercion:  if  out  of 
his  presence,  then  he  and  she  would  be  jointly  liable  for  the  wrong. 
*     *     *    Judgment  is  affirmed.* 


FLETCHER  v.  PEOPLE. 

(Supreme  Court  of  Illinois,  1869.    52  111.  395.) 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the  Court. 

This  was  an  indictment  against  Samuel  Fletcher  and  his  wife, 
Ledicia,  for  false  imprisonment  of  Samuel  Fletcher,  Jr.,  the  son  of 
Samuel,  Sr.,  and  stepson  of  Ledicia.  The  defendants  were  found 
guilty,  and  sentenced  to  pay  a  fine  of  $300  each. 

The  instructions  gave  the  law  correctly  to  the  jury,  and  so  far 
as  relates  to  Samuel  Fletcher,  we  are  of  opinion  the  evidence  sus- 
tains the  verdict.  It  shows  the  wanton  imprisonment,  without  a 
pretense  of  reasonable  cause,  of  a  blind  and  helpless  boy,  in  a  cold 
and  damp  cellar  without  fire,  during  several  days  of  mid-winter. 
The  boy  finally  escaped  and  seems  to  have  been  taken  in  charge 
by  the  town  authorities.  The  only  excuse  given  by  the  father  to 
one  of  the  witnesses  who  remonstrated  with  him  was  that  the  boy 
was  covered  with  vermin,  and  for  this  the  father  annointed  his  body 
with  kerosene.    If  the  boy  was  in  this  wretched  state,  it  must  have 

8  See,  also,  Rowe  v.  Rugg,  117  Iowa,  606,  91  N.  W.  003,  94  Am.  St.  Rep. 
318  (11)02),  wliicli  involv(Hi  the  rislit  of  a  parent  to  delegate  to  auother  the 
right  to  correct  the  child— in  this  case  the  child's  auut.  The  court  said: 
"While  we  are  not  prepared  to  hold  that  a  parent  may,  without  restraint, 
lawfully  authorize  any  and  all  persons  to  administer  physical  punishment 
to  his  or  her  child,  we  see  no  reason  why  such  authority  may  not  be  given 
imder  certain  circumstances.  For  instance,  if  a  child  is  temporarily  placed 
in  the  care  of  some  person,  in  whom  the  parent  has  great  contidence,  on  ac- 
count of  relationship  or  otherwise,  why  may  not  authority  to  correct  the 
child  he  delegated  for  the  time  being." 


182  RIGHTS  OF  PARENTS  AND    OF  CHILDREN 

been  because  he  had  received  no  care  from  those  who  should  have 
given  it.  In  view  of  his  blind  and  helpless  condition,  the  case  alto- 
gether is  one  of  shocking  inhumanity. 

Counsel  urge  that  the  law  gives  parents  a  large  discretion  in  the 
exercise  of  authority  over  their  children.  This  is  true,  but  this 
authority  must  be  exercised  within  the  bounds  of  reason  and  hu- 
manity. If  the  parent  commits  wanton  and  needless  cruelty  upon 
his  child,  either  by  imprisonment  of  this  character  or  by  inhuman 
beating,  the  law  will  punish  him.  Thus,  in  Johnson  v.  State,  2 
Humph.  (Tenn.)  283,  36  Am.  Dec.  322,  the  court  held  the  parents 
subject  to  indictment,  because,  in  chastising  their  child,  they  had 
exceded  the  bounds  of  reason,  and  inflicted  a  barbarous  punish- 
ment. It  would  be  monstrous  to  hold  that,  under  the  pretense  of 
sustaining  parental  authority,  children  must  be  left,  without  the 
protection  of  the  law,  at  the  mercy  of  depraved  men  or  women,  with 
liberty  to  inflict  any  species  of  barbarity  short  of  the  actual  taking 
of  life. 

In  this  case,  however,  the  verdict  against  Ledicia  Fletcher  was 
wrong.  There  is  absolutely  no  evidence  whatever  against  her.  As 
to  her,  the  judgment  must  be  reversed.  As  to  Samuel  Fletcher, 
it  is  affirmed. 


II.  Custody  of  Children* 


GILMORE  V.  KITSON. 

(Supreme  Court  of  Indiana,  1905.     165  Ind.  402,  74  N.  E.  1083.) 

Habeas  corpus  by  R.  H^-Gilm.Qre_agaijnst  Flora  D.  Kitson  and 
otTiers  to  obtain  the  custody  of  petitioner's  infant  daughter,  Ruth 
Gilmore.  From  a  judgment  awarding  the  care  and  custody  of  the 
infant  to  the  respondent  Flora  D.  Kitson,  the  petitioner  appeals. 

Montgomery,  j.5  *  *  ♦  The  controlling  facts  shown  by  the 
evidence,  briefly  summarized,  are  as  follows:  Appellant  is  32  years 
of  age,  and  lives  in  Indianapolis,  where  he  has  lived  all  his  life- 
time with  the  exception  of  2  years.  He  is  a  linotype  operator, 
has  permanent  and  steady  employment,  and  earns  about  $100  per 
month.  He  was  married  June  20,  1900,  and  lived  with  his  wife  at 
his  home  until  11  months  prior  to  her  death,  when,  on  account  of 
failing  health,  at  the  request  of  her  sister,  his  wife  went  to  her 
sister's  home,  at  Bloomington,  where  she  remained  until  her  death 

4  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  CSdEd.)  §§ 
125,  126. 

6  Part  of  the  opinion  is  omitted. 


CDSTODY  OF    CHILDREN  183 

May  5,  1904.  Ruth  A.  Gilmore  was  born  during  wedlock  on  Sep- 
tember 25,  1901.  Appellee  Flora  D.  Kitson  and  her  mother  waited 
upon  appellant's  wife  during  her  last  illness,  except  for  eight  weeks, 
when  they  had  the  assistance  of  a  nurse.  Appellant  paid  the  nurse 
and  the  doctors,  and  sent  to  his  wife  and  child,  while  at  the  home 
of  appellees,  money,  gifts,  and  flowers.  Appellant  lives  with  his 
mother,  a  widow,  and  single  sister,  in  a  comfortable  six-room  house, 
situated  in  a  good  neighborhood.  He  smokes  cigarettes  and  cigars, 
and  drinks  beer  occasionally,  but  otherwise  is  of  good  habits,  good 
moral  character,  good  disposition,  industrious,  kind,  and  affection- 
ate. His  mother  and  sister  are  of  good  character,  kind  and  loving 
disposition,  fond  of  children,  and  desirous  of  caring  for  the  child 
as  a  member  of  the  family. 

About  one  month  before  her  death,  appellant's  wife  made  a  \\  ill 
containing  the  following  provision : 

"I  desire  to  acknowledge  the  great  kindness  shown  me  and  my 
daughter  Ruth  during  my  last  illness  by  my  beloved  sister.  Flora 
D.  Kitson,  and  her  husband  Herbert  T.  Kitson,  to  express  my 
sincere  appreciation  of  the  love  and  devotion  shown  me  by  them  in 
taking  me  into  their  home  and  caring  for  me  during  the  last  year 
of  my  life.  During  this  time  my  daughter  Ruth  is  become  greatly 
attached  to  my  said  sister  and  her  husband,  and  I  know  by  their 
many  acts  of  attention  and  kindness  that  they  have  become  greatly 
attached  to  her  and  love  her  as  their  own  child,  and  are  willing 
and  able  to  care  for  and  educate  and  guide  her  in  the  way  she 
should  go. 

"It  is  therefore  my  will  and  most  earnest  wish  and  desire  that 
my  beloved  sister,  Flora  D.  Kitson,  have  the  care  and  custody  of 
my  only  child,  Ruth  A.  Gilmore,  during  the  years  of  her  minority. 

"In  expressing  this  will  and  desire  I  am  not  unmindful  of  my  hus- 
band, the  father  of  said  child,  but  make  this  rec[uest  for  the  dispo- 
sition of  my  child  because  I  believe  it  will  be  for  the  best  interests 
of  my  child  and  result  in  her  greatest  comfort  and  happiness." 

When  appellant's  wife  was  very  near  to  death,  appellees  called 
in  some  neighbors,  and  in  their  presence,  as  well  as  the  presence 
of  the  family,  appellant's  wife  asked  him  to  promise  to  give  the 
custody  of  the  child  to  Mrs.  Kitson;  but  this  he  very  kindly,  but 
firmly,  refused  to  do.  During  the  funeral  exercises  Mrs.  Kitson 
remained  with  the  child,  locked  in  a  rear  room  of  the  house,  and 
caused  a  policeman  to  be  present  for  the  purpose  of  preventing 
any  effort  to  take  the  child  from  her,  and  she  afterwards  refused 
to  allow  appellant  to  take  it  from  her  house.  After  the  death  of 
Mrs.  Gilmore,  Mrs.  Kitson  was,  without  appellant's  knowledge  or 
consent,  appointed  guardian  of  Ruth  A.  Gilmore  by  the  Monroe  cir- 
cuit court,  upon  a  showing  that  the  child  had  articles  of  personal 
property  bequeathed  to  her  by  her  mother,  of  the  value  of  $50. 

Appellee  Flora  D.   Kitson   is  a  kind  and   aft'ectionate  woman, 


184  RIGHTS  OF  PARENTS  AND    OF   CHILDREN 

Strongly  attached  to  the  child ;  and  her  husband  is  a  peaceable  and 
kind  man,  and  earns  from  $200  to  $400  per  month.  They  live 
in  a  comfortable  home  in  Bloomington,  and  are  in  every  way  com- 
petent to  be  intrusted  with  the  care  of  the  child,  and  have  no  chil- 
dren of  their  own.  They  have  radical  views  with  regard  to  the  use 
of  tobacco  and  intoxicants,  and,  from  studying  magazine  articles, 
have  become  believers  in  the  hygienic  theory  of  treatment  of  dis- 
eases. Appellant's  wife  was  kept  in  a  tent  and  given  no  medical 
treatment  during  her  illness.  An  estrangement  grew  between  ap- 
pellant and  appellees  by  reason  of  conflicting  views  with  regard  to 
the  proper  treatment  of  his  wife,  and  a  belief  on  his  part  that  ap- 
pellees were  seeking  to  alienate  her  affections  from  him. 

Both  under  the  common  law  and  the  statutes  of  this  state,  the 
natural  parents  are  entitled  to  the  custody  of  their  minor  children, 
except  when  they  are  unsuitable  persons  to  be  intrusted  with  their 
care,  control,  and  education.  Jones  et  ux.  v.  Darnell,  103  Ind.  572, 
2  N.  E.  229,  53  Am.  Rep.  545. 

Thf  piotb^r  cannot,  by  testamentary  provisions  or  otherwise,  de- 
prive the  father  of  his  right  to  the  custody  of  their  minor  child 
after  her  death.  Moore  v.  Christian,  56  Miss.  408,  31  Am.  Rep. 
375;  Stapleton  v.  Poynter,  111  Ky.  264,  62  S.  W.  730,  53  L.  R.  A. 
784.  98  Am.  St.  Rep.  411 ;  State  ex  rel.  v.  Reuff,  29  W.  Va.  751,  2 
S.  E.  801,  6  Am.  St.  Rep.  676;  Tavlor  v.  Jeter,  33  Ga.  195,  199,  81 
Am.  Dec.  202 ;  In  re  Neff,  20  Wash.  652,  56  Pac.  383. 

The  appointment  of  the  legal  guardian  was  also  ineffectual  to  de- 
prive the  father  of  his  right  to  the  custody  of  the  child.  Dalton 
v.State,  6  Blackf.  357;  Lee  et  al.  v.  Back,  30  Ind.  148;  Bryan  v. 
Lyon  et  al.,  104  Ind.  227,  3  N.  E.  880,  54  Am.  Rep.  309 ;  Brooke  v. 
Logan,  112  Ind.  183,  13  N.  E.  669,  2  Am.  St.  Rep.  177. 

This  court  has  frequently  said  that,  in  settling  disputed  claims  to 
the  custody  of  an  infant,  the  interest  of  the  child  is  the  paramount 
consideration.  It  is  apparent  from  the  record  that  the  assumed 
force  of  this  rule  persuaded  the  trial  court  into  the  conclusion 
reached.  We  are  not  disposed  to  qualify  or  criticise  that  princi- 
ple, but  we  cannot  conceive  that  it  should  be  invoked  or  enforced 
against  a  parent  under  no  disabilities,  unless  he  has  forfeited  his 
right  by  misconduct,  or  lost  it  by  voluntary  relinquishment  or  by 
long  acquiescence  in  the  care  and  custody  of  his  child  by  another. 
The  assumed  welfare  of  the  child  does  not  clothe  one  person  who 
may  enjoy  wealth  or  high  social  position  with  a  commission  to  seize 
and  hold  the  child  of  another  less  favored,  and  usurp  parental 
rights,  for  the  sole  reason  that  he  may  be  able  to  afford  such  child 
more  of  the  artificial  advantages  of  life.  The  most  appropriate 
application  of  the  principle  obtains  when  the  child  in  some  proper 
way  becomes  a  ward  of  the  court.  The  parents,  in  a  suit  for  di- 
vorce, or  other  proceeding,  may  properly  confer  jurisdiction  upon 
the  court  and  invoke  its  judgment  w^ith  regard  to  the  custody  of 


CUSTODY    OF    CHILDREN  185 

their  minor  children,  and  in  such  a  case  it  can  be  said  without  qual- 
ification that  the  interests  of  such  children  shall  be  the  paramount 
consideration.  Leibold  v.  Leibold,  158  Ind.  60,  62  N.  E.  627;  Joab 
V.  Sheets,  99  Ind.  328;  Bullock  v.  Robertson,  160  Ind.  521,  65  N. 
E.  5;   Johnston  v.  Johnston,  89  Wis.  416,  62  N.  W.  181. 

The  state,  upon  its  own  motion,  may,  in  the  interest  of  a  child, 
make  application  to  a  court  to  deprive  a  parent  of  its  custody  where 
such  a  parent  has  abandoned  or  forfeited  parental  rights  by  reason 
of  moral  turpitude,  vicious  habits,  cruel  and  inhuman  treatment, 
or  other  conduct  forbidden  by  statute.  Van  Walters  v.  Board, 
etc.,  132  Ind.  567,  32  N.  E.  568,  18  L.  R.  A.  431.  The  principle  of 
the  welfare  of  the  child  may  be  applied  to  defeat  the  claims  of  a 
parent  when  he  has  voluntarily  relinquished  to  others  the  custody 
and  care  of  his  child  until  the  affections  of  the  child  and  its  foster 
parents  have  become  so  firmly  interwoven  that  to  sunder  them 
would  seriously  mar  and  endanger  the  future  happiness  and  wel- 
fare of  the  child.  Schleuter  v.  Canatsy  et  al.,  148  Ind.  384,  47  N. 
E.  825;  Berkshire  v.  Caley,  157  Ind.  1,  60  N.  E.  696;  Fletcher  v. 
Hickman,  50  W.  Va.  244,  40  S.  E.  371,  55  L.  R.  A.  896,  88  Am.  St. 
Rep.  862;  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am. 
Rep.  810;  Chapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321;  En- 
ders  V.  Enders,  164  Pa.  266,  30  Atl.  129,  27  L.  R.  A.  56,  44  Am.  St. 
Rep.  598;  Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R.  A.  781. 

No  such  case  is  presented  by  this  record.  The  father  did  not 
abandon  the  child  or  relinquish  his  rights,  or  otherwise  abdicate 
his  parental  authority.  Appellant  expressly  declined  to  release  to 
appellees  his  right  to  the  custody  of  his  child  when  appealed  to 
under  the  most  pathetic  circumstances.  Appellees  obtained  phys- 
ical possession  of  the  child  by  reason  of  their  relation  to  and  care 
of  the  mother  during  her  last  illness,  and  retained  it  by  a  display 
of  force.     *     *     * 

"Appellees'  claims  to  the  custody  of  this  child  are  not  founded 
upon  natural  or  legal  rights,  but  only  upon  the  superior  advantages 
which  it  is  assumed  would  be  afforded  the  child  by  leaving  it  in 
their  home  and  under  their  control.  The  facts  shown  by  the  evi- 
dence are  not  sufficient  to  require  a  court  to  exercise  its  discretion- 
ary power  to  intervene,  and  interfere  with  parental  authority.  We 
are  not  unmindful  of  the  tender  affection  and  generous  impulses 
which  inspired  the  acts  of  appellees,  and  fully  appreciate  the  noble 
traits  of  mind  and  heart  exhibited,  but  they  cannot  outweigh  the 
sacred  rights  of  a  parent.  Courts  must  not  be  tempted  to  inter- 
fere with  the  natural  order  of  family  life  except  in  special  cases  of 
extreme  urgency.  In  a  case  like  this  a  court  should  not  arrogate 
to  itself  the  right  to  determine  by  its  standards  the  welfare  and 
benefit  of  the  child,  but  should  have  a  conscientious  regard  for  the 
natural  law,  from  which  we  learn  that  the  father,  as  a  rule,  knows 


186  RIGHTS  OF   PARENTS  AND    OP  CHILDREN 

far  better  what  is  good  for  his  child  than  a  court  of  justice  can 
know. 

Paternal  control  of  the  family  has  been  a  fundamental  principle 
in  the  history  of  mankind,  and  its  free  exercise,  restricted  only  in 
the  interest  of  humanity  and  good  morals,  is  essential  to  the  high- 
est development  of  the  race.  What  influence  more  likely  to  lead 
to  despondency  and  self-destruction  than  the  unnatural  separation, 
of  a  parent  from  his  child,  and  what  greater  stimulus  to  worthy 
ambition  and  noble  endeavor  on  the  part  of  a  father  than  the  care 
and  companionship  of  his  motherless  girl?  It  is  needless  to  elabo- 
rate argument.  The  father  has  not  relinquished  or  forfeited  his 
rights  as  a  parent,  and  the  faults  found  with  his  habits  are  not  of 
such  unusual  and  serious  character  as  to  disqualify  him  from  dis- 
charging his  parental  duties,  or  to  make  him  an  unfit  associate  of 
his  own  child. 

The  court  erred  in  awarding  the  custody  of  the  child,  Ruth  A. 
Gilmore,  to  appellee  Flora  D.  Kitson,  and  the  judgment  is  reversed, 
with  directions  to  vacate  the  same,  and  to  enter  judgment  for  the 
delivery  of  said  child  to  appellant.^ 


HUSSEY  V.  WHITING. 

(Supreme  Court  of  Indiana,  1S96.    145  Ind.  580,  44  N.  E.  639,  57  Am.  St.  Rep. 

220.) 

Proceeding  by  habeas  corpus  by  Charles  C.  Whiting  against 
Richard  L.  Hussey.  Judgment  for  petitioner,  and  defendant  ap- 
peals.    Affirmed. 

Hackney,  J.  This  was  a  proceeding  by  habeas  corpus  for  the 
custody  of  Ray  Hussey,  a  little  girl  13  years  of  age,  and  was  in- 
stituted by  the  appellee,  her  maternal  grandfather,  against  her  fa- 
ther, the  appellant.  The  decree  of  the  lower  court  was  in  favor  of 
the  appellee  and  the  appellant  submits  the  case  to  this  court  by  his 
appeal  upon  the  evidence. 

It  may  be  fairly  said  that,  by  a  clear  preponderance  of  the  evi- 
dence, either  party  entertains  a  deep  affection  for  the  child,  and 
might  reasonably  be  intrusted  with  her  moral  training.  Since  the 
death  of  her  mother,  some  six  years  before  the  disagreement  which 
resulted  in  this  proceeding,  she  resided  with  her  grandparents,  who 
were  possessed  of  a  large,  comfortable  home,  and  lands  of  the  value 
of  $20,000  or  more,  and  were  willing  and  prepared  to  render  ev- 
ery care  and  comfort  necessary  to  the  welfare  of  the  child.  Dur- 
ing the  period  mentioned  the  appellant  continued,  and  still  is,  a 
widower,  with  little  means  above  his  indebtedness,  but  with  an 

6  See,  also,  Stapleton  v.  Poynter,  111  Ky.  264,  62  S.  W.  730,  53  L.  R.  A.  784, 
98  Am.  St.  Rep.  411  (1901).    And  compare  Hussey  v.  Whiting,  supra. 


CUSTODT   OF  CHILDREN 


187 


average  income  of  $50  per  month  from  his  business.  Until  he  took 
the  child  from  her  grandparents,  he  made  his  home  with  them,  but 
his  business,  that  of  traveling  salesman,  required  him  to  be  absent 
from  five  to  six  days  each  week.  He  paid  for  his  own  boarding, 
and  supplied  most  of  the  material  for  clothing  the  child ;  but  her 
boarding  and  care,  and  the  making  of  her  clothing,  were  supplied 
by  her  grandparents.  The  appellant  and  the  child  took  up  their 
home  with  the  appellee,  pursuant  to  a  request  from  llrs.  Hussey, 
while  upon  her  deathbed,  that  they  should  have  a  home  with,  and 
that  the  child  should  be  raised  by,  the  appellee  and  his  wife._ 

The  parties  differ  as  to  the  conversation  at  the  time  of  this  re- 
quest, as  to  whether  the  appellant  simply  acquiesced  in  the  request 
and  the  appellee's  promise,  or  whether  he  declined  to  "give"  the 
child  to  her  grandparents.  But  there  is  no  disagreement  about  the 
fact  that  the  appellee  and  his  wife  cared  for  the  child  as  a  member 
of  their  family,  and  became  greatly  attached  to  her,  and  that  the 
appellant  took  her  from  them,  not  by  reason  of  any  neglect  or  mis- 
treatment of  her,  but  because  he  and  his  mother-in-law  at  times 
disagreed,  and  had  bitter  words  as  to  his  own  relations  to  the 
household,  and  because  he,  without  just  cause,  thought  that  the 
child  was  becoming  estranged  from  him  by  the  influence  of  her 
grandmother.  When  she  was  taken  from  the  appellee's  home,  jhe 
was  taken  to  the  home  of  the  appellant's  married  sister,  who  lived 
in  the  town  of  Princeton,  where  the  appellee  lived  also.  The  sister, 
Mrs.  Eby,  owned  and  lived  in  a  house  of  four  rooms.  Her  husband 
labored  at  $1.25  per  day.  There  were  four  members  of  her  family, 
and  a  boarder  five  days  in  the  week,  when  the  appellant  and  his 
daughter  took  up  their  new  abode  with  her.  Mrs.  Eby  was  a  kind- 
hearted  woman,  affectionate  with  children,  and  favorably  disposed 
towards  the  little  girl.  She  performed  all  of  the  duties  of  her  house- 
hold without  a  servant,  and,  while  her  circumstances  were  not  the 
best,  she  was  a  fit  woman  to  have  the  care  and  moral  training  of 
the  child.  Mrs.  Hussey  had  died  of  consumption,  and  the  child  was 
delicate,  and  evidently  predisposed  to  tha.  disease. 

Ordinarily  the  father  is  entitled  to  the  custody  of  his  minor  chil- 
dren. This  was  the  rule  of  the  common  law,  and  is  affirmed  by 
statute  in  this  state;  but,  where  the  welfare  of  the  child  is  re- 
tarded by  the  custody  of  the  father,  an  exception  to  the  ordinary 
rule  exists.  The  interests  of  society  and  the  established  policy 
of  the  law  make  the  welfare  of  the  child  paramount  to  the  claims 
of  a  parent.  Jones  v.  Darnall,  103  Ind.  574,  2  N.  E.  229,  53  Am. 
Rep.  545 ;  Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R.  A. 
781,  and  note;  Joab  v.  Sheets,  99  Ind.  332;  Schouler,  Dom.  Eel.  § 
248;  U.  S.  V.  Green,  3  Mason,  482,  Fed.  Cas.  No.  15,256;  Bryan  v. 
Lyon,  104  Ind.  227,  3  N.  E.  880,  54  Am.  Rep.  304.  The  oral  agree- 
ment, express  or  implied,  that  the  appellee  should  have  the  custody 
of  the  child  during  her  infancy,  would  not  preclude  the  appellant 


188  RIGHTS  OP  PARENTS  AND    OF  CHILDREN 

from  reclaiming  her  custody.  Brooke  v.  Logan,  112  Ind.  183,  13 
Nr^:  669,  2  Am.  St.  Rep.  177;  Weir  v.  Marley,  99  Mo.  484,  12  S. 
W.  798,  6  L.  R.  A.  672.  The  conclusion  of  the  trial  court,  therefore, 
must  have  been  reached  upon  the  theory  that  the  welfare  of  the 
child  would  be  best  promoted  by  remanding  her  to  the  custody 
of  the  appellee;  and  it  remains  for  us  to  determine,  upon  the  facts 
stated,  whether  that  view  of  the  case  is  supported. 

Considering  the  delicacy  of  her  health,  the  care  and  attention  she 
requires  on  that  account,  the  comforts  of  the  spacious  home  of  her 
grandparents,  their  relationship  to  and  affection  for  her,  the  under- 
standing of  her  health,  disposition,  and  habits,  acquired  during  the 
six  years  they  have  had  the  care  of  her,  present  a  very  strong  claim 
in  favor  of  their  continued  custody  of  her.  The  father's  situation 
and  business  afford  her  no  home  with  him,  and,  at  best,  from  his 
standpoint,  he  can  but  supply  her  a  home  and  its  comforts  by  pur- 
chase, and  with  but  little  of  his  society.  The  home  which  he  claims 
to  be  not  less  conducive  to  the  welfare  of  the  child  than  that  from 
which  he  took  her  is,  no  doubt,  modest  and  reasonably  comforta- 
ble under  the  circumstances ;  but  certainly  Mrs.  Eby's  obligations 
to  her  own  immediate  family,  including  her  two  children,  would 
not  afford  her  the  time  to  bestow  careful  attention  to  the  needs  and 
wants  of  the  child,  and  the  crowded  condition  of  her  home  of  four 
rooms  would  certainly  not  be  so  conducive  to  the  health  of  the  child 
as  that  of  her  grandparents. 

The  conclusion  of  the  trial  court  was  not  a  mere  discrimination 
between  the  luxuries  of  wealth  on  the  one  side  and  the  modest  com- 
forts of  an  ordinary  home  on  the  other,  nor  was  it  a  simple  denial 
of  the  right  of  a  father  to  have  the  care,  custody,  and  training  of 
his  minor  child.  It  was  a  recognition  of  the  fact  that  a  child  re- 
quiring unusual  care  could  probably  not  receive  it,  and  that  her 
father  sought  to  remove  her,  not  to  his  own  custody,  but  to  that 
of  another  whose  situation  in  life  was  not  so  conducive  to  the  health 
and  general  welfare  of  the  child  as  that  of  her  grandparents. 

The  decree  of  the  circuit  court  is  criticised  by  counsel  because  of 
its  having  provided  that  the  appellant  should  "at  proper  times"  be 
permitted  to  visit  his  child,  without  defining  the  phrase  "proper 
times."  The  criticism,  we  presume,  is  made  upon  the  assignment 
of  error  that  "the  court  erred  in  overruling  the  appellant's  motions 
to  modify  the  judgment."  There  were  numerous  motions  to  modify 
the  judgment,  severally  filed  and  severally  overruled,  some  of  which 
were  properly  overruled,  and  it  is  not  even  claimed  in  argument 
that  all  were  improperly  overruled.  There  is,  therefore,  no  avail- 
able error.     The  judgment  is  affirmed.'^ 

7  Accord:  McDonald  v.  Stitt,  118  Iowa,  199,  91  N.  W.  1031  (1902);  String- 
fellow  V.  Somerville,  95  Va.  701,  29  S.  E.  6S5.  40  L.  R.  A.  623  (1898) ;  State 
V.  Anderson,  S9  Minn.  198,  94  N.  W.  681  (1903). 

As  to  effects  of  agreements  as  to  custody  of  child,  see  Carpenter  v.  Car- 


CUSTODY    OF    CHILDREN  189 

WARD  V.  WARD. 
(Court  of  Civil  Appeals  of  Texas,  1903.    34  Tex.  Civ.  App.  104,  77  S.  W.  829.) 

Proceeding  between  W.  M.  Ward  and  Ollie  Ward.  From  a 
judgment  for  Ollie  Ward,  W.  M.  Ward  appeals. 

SpEER,  J.®  This  is  a  contest  between  the  paternal  grandfather, 
upon  the  one  hand,  and  the  mother  upon  the  other,  over  the  custody 
of  an  infant — a  boy  4  years  of  age.  The  trial  court  awarded  the 
custody  to  the  mother,  and  while  we  are  loath  to  disturb  that  judg- 
ment, yet  a  just  appreciation  of  the  rights  of  the  minor,  we  think, 
compels  us  to  remand  the  cause.  Appellant  pleaded,  among  other 
things,  that  the  mother  of  the  infant  had  "a  bad  reputation  for 
^cHastity,  truth,  veracity,  and  honesty,"  and  the  trial  court  sustained 
a  special  exception  to  such  allegation,  and  refused  to  hear  evidence 
in  its  support.  A  parent's  claim  to  the  custody  of  an  infant  is  of 
course  ordinarily  superior  to  that  of  any  other  person,  but  it  is  not 
alone  to  the  right  or  wish  of  the  parent  we  are  to  look  in  deter- 
mining such  question.  Such  right  is  not  absolute.  The  interest  of 
the  child  is  the  first  consideration,  and,  if  such  parent  is  for  any 
reason  an  unsuitable  person  to  have  its  care,  the  custody  should  be 
awarded  elsewhere.  If  the  mother  in  this  instance  is  a  woman  of 
bad  reputation  in  the  particulars  mentioned,  that  fact  should  be 
considered  by  the  court  or  jury  in  determining  the  award.  A  moth- 
er's reputation  in  these  respects  might  be  so  notoriously  bad  as 
to  render  it  altogether  out  of  the  question  that  she  should  be  per- 
mitted to  rear  her  child  when  a  better  home  is  offered  it.  We  have 
nothing  to  do  with  the  weight  of  the  proposed  testimony  in  this 
case,  but  merely  rule  that  the  allegation  should  not  have  been 
stricken  out,  and  that  evidence  should  have  been  admitted  in  its 
support.     *     *     * 

For  the  error  discussed,  we  reverse  the  judgment  and  remand 
the  cause. 

renter.  149  Mich.  138,  112  N.  W.  749  (1907);  Hibbette  v.  Baines,  78  Miss. 
695,  29  South.  80,  51  L.  R.  A.  839  (1900) ;  Fletcher  v.  Hickman,  50  W.  Va. 
244,  40  S.  E.  371,  55  L.  R.  A.  896,  88  Am.  St.  Rep.  S62  (1901) :  Norval  v.  Zins- 
master,  57  Neb.  158,  77  N.  W.  373,  73  Am.  St.  Rep.  500  (1898). 

Right  to  direct  religious  training,  see  In  re  Jacquet,  40  Misc.  Rep.  575,  82 
N.  Y.  Supp.  9S6  (1903).  And  see  State  ex  rel.  Flint  v.  Flint,  63  Minn.  187,  65 
N.  W,  272  (1895). 

«  Part  of  the  opinion  is  omitted. 


190  EIGHTS  OP   PARENTS  AND    OF  CHILDREN 


III.  Parent's  Right  to  Child's  Services  and  Earnings  • 


BIGGS  V.  ST.  LOUIS,  I.  M.  &  S.  RY.  CO. 

(Supreme  Court  of  Arkansas,  1909.    91  Ark.  122,  120  S.  W.  970.) 

Action  by  Sam  Biggs,  by  his  next  friend,  Sallie  Biggs,  against 
the  St.  Louis,  Iron  Mountain  &  Southern  Railway  Company,  to 
recover  wages  earned  by  the  infant  plaintiff  in  the  employ  of  the 
defendant.  The  action  was  instituted  before  a  justice  of  the  peace, 
and  judgment  for  $108.25,  wages  and  penalty,  recovered.  From  this 
judgment,  defendant  appealed  to  the  circuit  court.  On  the  trial  in 
the  circuit  court,  it  was  shown  that  Sam  Biggs  was  16  years  old, 
living  with  his  mother,  Sallie  Biggs,  on  a  small  farm.-  '  Through 
the  farming  season,  he  worked  on  the  farm,  but  at  other  times^he 
worked  for  other  people,  making  his  own  contracts,  collecting 
his  wages,  and  retaining  his  earnings  as  his  own  property.  This 
was  done  with  his  mother's  knowledge  and  without  any  objection 
on  her  part,  though  it  did  not  appear  that  she  gave  express  consent 
thereto.  In  August,  1907,  he  worked  two  or  three  days  for  defend- 
ant and  was  then  discharged.  In  demanding  his  wages,  he  was 
given,  by  the  foreman,  an  identification  ticket  for  the  amount  due 
him,  $3.50,  and  told  to  present  it  to  the  agent  at  Delaplaine.  He 
applied  to  the  agent  for  his  money,  but  the  agent  claimed  he  had 
not  received  it.  After  several  applications  he  instituted  this  suit, 
in  October,  1907.  After  the  judgment  was  obtained  in  the  justice's 
court,  an  agent  of  defendant  paid  Sallie  Biggs  $5.10,  taking  from 
her  a  receipt  for  the  amount,  in  which  it  was  recited  that  the  amount 
was  "in  full  for  wages  and  interest  on  the  same  due  my  son  from 
the  railway."  The  circuit  court  directed  a  verdict  for  defendant, 
and  from  the  judgment  entered  thereon  plaintiff  appeals. 

Frauenthal,  J.^°  *  *  *  It  is  contended  by  the  defendant 
that,  inasmuch  as  Sammy  Biggs  was  a  minor,  his  wages  belonged  to 
his  mother,  and  that  it  had  paid  to  her  the  amount  of  such  wages, 
as  evidenced  by  said  receipt,  and  that  therefore  there  was  nothing 
due  for  said  wages  at  the  time  of  said  trial  in  the  circuit  court.  It  is 
true  that  as  a  general  rule  the  father  is  entitled  to  the  services  and 
earnings  of  his  minor  child,  and  that  the  widowed  mother  is  enti- 
tled to  these  services  and  earnings  to  the  same  extent  as  the  father. 
That  is  founded  on  the  universal  right  of  the  parent  to  the  custody 
and  control  of  the  child  and  his  duty  of  maintenance  and  education 

9  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  § 
127. 

10  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


parent's  right  to  child's  services  and  earnings        191 

of  the  minor  child.    But  the  parent  may  permit  his  minor  child  to 
make  his  own  contract,  and  to  receive  and  own  his  wages.     The 
parent  has  the  right  to  give  to  his  infant  son  his  time  and  the  fruits 
of  his  labor,  and  in  such  case  the  minor  is  under  the  law  entitled 
to  such  earnings.    The  parent  may  relinquish  his  right  to  the  serv- 
ices and  earnings  of  the  child  expressly,  but  this  relinquishment 
may  also  be  implied  from  the  circumstances.    And  this  relinquish- 
ment may  be  found  to  have  been  made  where  the  parent  allov^s 
the  child  to  make  his  own  contracts,  and  to  collect  and  retain  his 
earnings.     Bobo  v.  Bryson,  21  Ark.  387,  76  Am.  Dec.  406;    Fair- 
hurst  V.  Lewis,  23  Ark.  435 ;   Vance  v.  Calhoun,  71  Ark.  35,  90  S. 
W.  619,  113  Am.  St.  Rep.  Ill;    Smith  v.  Gilbert,  80  Ark.  525,  98 
S.  W.  115,  8  L.  R.  A.  (N.  S.)  1098;  Kansas  City,  P.  &  G.  Ry.  Co. 
V.  Moon,  66  Ark.  409,  50  S.  W.  996 ;    Rodgers  on  Domestic  Rela- 
tions, §  485;    29  Cyc.  1626;    Dierker  v.  Hess,  54  Mo.  246.     And 
where  the  parent  has  thus  relinquished  his  right  to  the  earnings 
of  the  minor,  the  right  of  action  to  recover  such  wages  is  in  the 
child,  and  not  in  the  parent ;   and  such  right  of  the  child  continues 
until  it  is  revoked.     This  relinquishment  by  the  parent  of  the  mi- 
nor's services  and  earnings  may  be  revoked  by  the  parent.    Vance 
V.  Calhoun,  17  Ark.  35,  90  S.  W.  619,  113  Am.  St.  Rep.  HI ;  Rodg- 
ers on  Domestic  Relations,  §  485 ;   29  Cyc.  1627.     But  where  the 
parent  has  permitted  the  child  to  contract  for  himself,  and  to  re- 
ceive his  wages,  he  cannot  revoke  this  license  after  the  wages  have 
been  earned  so  as  to  acquire  rights  in  the  wages  already  earned. 
Under  such  circumstances  the  parent  is  precluded  from  asserting 
a  claim  to  such  wages.     Rodgers  on  Domestic  Relations,  §  487; 
Torrens  v.  Campbell,  74  Pa.  470;    Campbell  v.  Campbell,  11   N. 
J.  Eq.  268. 

In  the  case  of  Tennessee  Mfg.  Co.  v.  James,  91  Tenn.  154,  18  S. 
W.  262,  15  L.  R.  A.  211,  30  Am.  St.  Rep.  865,  Lurton,  J.,  says: 
"The  father  may  permit  the  minor  to  take  and  use  his  own  earn- 
ings. This  is  called  emancipation,  and  emancipation  will  be  a  de- 
fense to  the  father's  suit  for  the  minor's  wages.  It  may  be  express 
or  implied,  *  *  *  for  the  whole  minority  or  for  a  shorter  term. 
*  *  *  Emancipation  will  not  enlarge  the  minor's  capacity  to 
contract;  it  simply  precludes  the  father  from  asserting  his  claim 
to  the  wages  of  his  child.  If  one  employ  a  minor  with  notice  of 
the  nonemancipation  of  the  infant,  it  will  be  no  defense  to  the  fa- 
ther's suit  for  the  wages  that  the  child  has  received  them.  On  the 
other  hand,  payment  to  the  father  will  be  no  defense  to  the  minor's 
^Siiit,  if  the  employer  knew  of  the  fact  of  emancipation."  See,  also, 
"note  to  case  of  Wilson  v.  McMillan,  35  Am.  Rep.  117. 

In  the  case  at  bar  we  are  of  the  opinion  that  there  was  sufficient 
evidence  to  go  to  the  jury  for  that  body  to  pass  on  the  question  as 
to  whether  the  parent  in  this  case  had  given  to  the  minor  son  the 
right  to  make  this  contract  for  his  labor  and  collect  and  appro- 


192  RIGHTS  OF  PARENTS  AND    OF  CHILDREN 

priate  to  his  own  use  the  earnings  arising  from  such  labor.    If  she 
did,  then  the  son  had  a  right  to  enter  suit  therefor,  and  the  mother 
could  not  then  revoke  her  license  to  him  to  have  such  earnings 
so  as  to  collect  the  same  herself  and  deprive  him  of  the  right  to  re- 
cover them.     In  this  case  the  mother  consented  to,  and  did,  act 
as  next  friend  for  the  minor,  and  did  as  such  next  friend  enter  suit 
for  the  wages  in  the  name  of,  and  for  the  benefit  of,  the  minor,  and 
thus  recognized  his  right  to  recover  same  for  himself.     The  de- 
fendant had  knowledge  of  this  by  the  institution  of  this  suit  and 
the  recovery  of  the  judgment  before  the  justice  of  the  peace.    After 
this  judgment  was  thus  recovered,  the  defendant  with  this  knowl- 
edge made  payment  to  the  parent,  and  thereafter  pleads  such  pay- 
ment against  the  suit  of  the  minor.    If  Mrs.  Sallie  Biggs  had  eman- 
cipated her  son  to  make  the  contract  for  the  wages  and  to  collect 
same,  she  had  no  right  thereafter  to  revoke  that  license  as  to  these 
earnings,  and  collect  them.    And  under  such  circumstances  a  pay- 
ment by  defendant  to  her  would  not  be  a  defense  to  this  suit.    Mrs. 
Sallie  Biggs  as  next  friend  instituted  this  suit  for  the  minor.     As 
such  next  friend  she  had  no  authority,  either  to  compromise  this 
case,  or  to  receive  any  money  belonging  to  the  minor.    Xbe  minor 
had  recovered  judgment  against  the  defendant  for  $108.25,  and  she 
received  therefor  $5.10.     She  could  not,  as  next  friend,  defeat  the 
minor  by  any  such  compromise  or  settlement.    Her  only  and  entire 
authority  as  next  friend  was  to  prosecute  the  suit,  and  in  the  prog- 
ress of  the  case  she  could  take  no  action  that  would  be  binding  on 
the  minor,  except  with  the  consent  of  the  court.     In  this  case  she 
appears  to  have  made  receipt  in  her  own  name  and  right,  and  not 
as  next  friend;  but,  if  the  receipt  could  be  considered  as  made  by 
her  as  next  friend,  it  would  not  be  a  defense  to  this  action.    Evans 
V.  Davies,  39  Ark.  235 ;   Rankin  v.  Schofield,  70  Ark.  83,  66  S.  W. 
197;  Wood  v.  Claiborne,  82  Ark.  514,  102  S.  W.  219,  11  L.  R.  A. 
(N.  S.)  913,  118  Am.  St.  Rep.  89;   22  Cyc.  661-663. 

It  is  next  urged  by  the  defendant  that  the  plaintiff  did  not  re- 
quest his  foreman,  or  the  keeper  of  his  time,  to  have  the  money  due 
him,  or  a  valid  check  therefor,  sent  to  a  station  named  by  him  where 
a  regular  agent  was  kept,  and  for  that  reason  is  not  entitled  to  any 
penalty.  This  suit  for  penalty  was  brought  under  the  act  of  the 
General  Assembly  of  Arkansas  approved  April  24,  1905,  and  which 
amends  section  6649  of  Kirby's  Dig.  Acts  1905,  p.  538.  That  act 
makes  the  above  request  or  notice  necessary  to  a  recovery  of  a 
penalty.  Wisconsin  &  Ark.  L.  Co.  v.  Reaves,  82  Ark.  377,  102  S. 
W.  206;  St.  L.,  I.  M.  &  S.  Ry.  Co.  v.  Bailey,  87  Ark.  132,  112  S. 
W.  180;  St  L.,  I.  M.  &  S.  Ry.  Co.  v.  McClerkin,  88  Ark.  277,  114 
S.  W.  240.  But  the  evidence  in  this  case  tended  to  prove  that  the 
foreman  at  the  time  of  the  discharge  told  the  plaintiff  that  the 
money  due  him  would  be  sent  to  the  depot  agent  at  Delaplaine, 
and  that  the  plaintiff  agreed  to  that  place  for  receiving  payment. 


EMANCIPATION   OF   CHILDREN  193 

This  was  equivalent  to  a  request  on  the  part  of  plaintiff  to  have 
the  money  due  him  sent  to  that  station. 

The  above  questions  were  controverted  questions  of  fact,  and 
were  within  the  province  of  the  jury  to  determine.  Under  proper 
instructions  there  was  sufficient  evidence  adduced  in  this  case  to 
sustain  a  verdict  of  the  jury  in  favor  of  the  plaintiff,  should  such 
ajverdict  have  been  returned.  The  court,  therefore,  erred  in  direct- 
jng  a  peremptory  verdict  in  favor  of  the  defendant.  The  judg- 
ment is  reversed,  arid  the  cause  remanded  for  a  new  trial. 


IV.  Emancipation  of  Children  ** 


ROUNDS  BROS.  v.  McDANlEL. 

(Court  of  Appeals  of  Kentucky,  1909.     133  Ky.  669,  118  S.  W.  956,  134  Am. 

St.  Rep.  482.) 

Carroll,  J.^^  This  case  presents  the  interesting  question  :  What 
acts  and  conduct  of  a  father  will  constitute  an  emancipation  of 
his  minor  child  so.as  to  deny  the  father  the  right  to  recover  the 
child's  wages  during  his  minority? 

""The  mother  of  Byrne  McDaniel  died  in  1900,  when  he  was  about 
12  years  old,  leaving  his  father,  the  appellee,  A.  J.  McDaniel,  with 
six  children  to  care  for.  The  father,  who  was  a  poor  but  kindly 
disposed  man,  a  carpenter  by  trade,  did  not  own  any  property,  and 
found  it  necessary  to  place  the  other  childern — all  of  whom  were 
younger  than  Byrne — in  orphan  homes;  but  after  doing  so  he  aided 
in  their  support.  After  this  the  father  and  Byrne  boarded  with  a 
sister  of  the  father,  and  for  two  or  three  years  thereafter  Byrne 
worked  at  different  places,  earning  a  few  dollars  a  week,  which 
he  contributed  towards  his  support.  In  1902  Byrne,  who  was  then 
about  14  years  old,  commenced  to  work  for  appellant,  Rounds  Bros. 
They  paid  him  small  wages  in  the  beginning,  but,  finding  him  to  be 
an  industrious,  sober,  well-behaved,  and  capable  boy,  gradually  in- 
creased his  compensation,  until  at  the  time  this  suit  was  brought  in 
1907  he  was  receiving  some  $8  or  $10  a  week.  During  the  first 
two  years  that  he  worked  for  them  he  lived  with  his  father  at  his 
aunt's,  and  contributed  all  or  the  greatest  part  of  his  wages  to- 
wards paying  for  his  board  and  clothing. 

In  1904,  Byrne  becoming  dissatisfied  with  the  accommodations 
received  at  his  aunt's,  left  her  house  and  procured  board  and  lodg- 

11  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
128-131. 

12  Part  of  the  opinion  is  omitted. 

COOLEY  P.&  D.Rel.— 13 


194  RIGHTS  OF  PARENTS  AND    OF  CHILDREN 

ing  elsewhere.  The  evidence  does  not  disclose  any  substantial 
reason  why  B3^rne  left  the  home  of  his  aunt,  but  he  assigned  as  a 
cause  for  so  doing  that  the  accommodations  there  were  not  as  com- 
fortable as  he  desired,  and  that  he  could  not  get  his  meals  when  he 
wanted  them.  After  he  left  his  father  did  not  contribute  anything 
toward  his  support  or  maintenance  or  expend  anything  in  his  be- 
half. In  fact,  he  did  not,  after  leaving  his  aunt,  need  the  assist- 
ance of  his  father,  as  he  was  earning  sufficient  money  to  take  care 
of  himself.  His  father  did  not  object  to  his  leaving  home,  nor  did 
he  make  any  provision  or  arrangement  for  another  home  for  him, 
although  it  cannot  be  said  that  his  acts  or  conduct  or  treatment  of 
Byrne  furnished  any  sufficient  reason  why  Byrne  should  have  aban- 
doned the  home  provided  for  him  by  his  father.  His  father  was  at 
all  times  aware  of  the  fact  that  Byrne  was  working  for  the  Rounds 
Bros.,  and  knew  that  from  1904  to  1906  they  paid  him  his  wages, 
and  that  he  was  expending  them  for  his  own  use  and  benefit ;  but 
he  did  not  object  or  make  any  demand  that  the  wages  be  paid  to 
him  until  April,  1906,  when  he  notified  Rounds  Bros,  that  they  must 
pay  him  what  the  boy  earned.  This  they  declined  to  do,  and  in 
19C8,  he  brought  this  action  to  recover  the  amount  Byrne  earned 
after  he  notified  the  Rounds  Bros,  to  pay  the  wages  to  him. 

The  jpwer  court  rendered  a  judgment  in  favor  of  the  father 
against  the  Rounds  Bros,  for  the  amount  of  the  boy's  wages  after 
the  notification,  less  the  sum  expended  during  this  time  by  Byrne 
for  board  and  clothes.  It  may  be  here  stated  that,  if  the  father  had 
not  emancipated  his  son  and  was  entitled  to  his  wages,  no  just 
complaint  could  be  made  of  the  judgment.  Having  the  view  the 
lower  court  did  of  the  law  of  the  case,  it  was  correctly  held  that 
there  should  be  deducted  from  the  wages  received  by  the  son  the 
amount  necessary  to  defray  his  expenses.  Culberson  v.  Alabama 
Construction  Co.,  127  Ga.  599,  56  S.  E.  765,  9  L.  R.  A.  (N.  S.)  '411, 
9  Am.  &  Eng.  Ann.  Cas.  507.  From  the  judgment  the  Rounds 
Bros,  prosecute  this  appeal,  and  ask  a  reversal  upon  the  ground 
that  the  father  had  emancipated  his  son,  and  therefore  was  not 
entitled  to  recover  his  wages,  and  in  this  insistence  they  are  joined 
by  Byrne.  The  father's  contention  is  that  the  facts  before  stated 
are  not  sufficient  to  amount  to  an  emancipation  of  his  son,  and  con- 
sequently he  was  entitled  to  recover  from  the  Rounds  Bros,  the 
boy's  wages  after  he  notified  them  that  he  claimed  them.  He  also 
makes  the  further  point  that  even  if  it  should  be  held  that,  by  per- 
mitting his  son  to  leave  home  and  earn  his  own  living,  he  impliedly 
emancipated  him.  yet  he  had  the  right  at  any  time  during  the  child's 
minority  to  revoke  this  constructive  emancipation  and  resume  pa- 
rental control  and  authority,  and  that,  after  he  had  so  revoked  it 
by  notifying  the  Rounds  Bros,  that  he  claimed  his  son's  wages, 
the  status  of  parent  and  child  was  re-established  the  same  as  if 
there  had  never  been  any  emancipation. 


EMANCIPATION    OF   CHILDREN  195 

We  have  in  this  state  no  statute  upon  the  subject  under  consid- 
eration, nor  has  the  question  ever  been  directly  decided  by  this 
court;  but  the  subject  of  parent  and  child,  and  the  reciprocal 
rights,  duties,  and  obligations  of  each,  has  furnished  so  much  inter- 
esting matter  for  text-book  writers,  and  has  so  frequently  been  con- 
sidered by  courts  of  other  jurisdictions,  that  there  is  ample  prece- 
dent and  authority,  both  ancient  and  modern,  from  which  to  gather 
and  formulate  the  general  rules  of  law  applicable  to  this  relation. 
But  this  case  presents  some  features  of  the  law  that  are  not  so  well 
settled,  and  concerning  which  there  is  conflict  of  authority.  The 
duties  and  obligations  of  parent  and  child  are,  in  a  sense,  at  least 
reciprocal.  Upon  the  parent  is  imposed  by  nature,  as  well  as  law, 
the  obligation  of  supporting  and  caring  for  his  offspring.  *  *  * 
From  this  duty  resting  upon  the  parent  comes  the  right  to  the 
services  of  the  child  during  his  minority,  intended  to  be  at  least 
in  some  measure  compensation  for  the  care  and  attention  bestowed 
upon  the  child  in  infancy;  and  this  right  of  the  parent  to  the  serv- 
ices of  the  child  during  his  minority  is  everywhere  recognized. 
Jones  v.  Tevis,  14  Ky.  25,  14  Am.  Dec.  98;  L.  &  N.  R.  R.  Co.  v. 
Willis,  83  Ky.  57,  4  Am.  St.  Rep.  124;  Illinois  Central  R.  Co.  v. 
Henon  (Ky.)  68  S.  W.  456;  Blackstone,  Commentaries,  vol.  1,  p. 
454;  Schouler  on  Domestic  Relations,  p.  334;  Tyler  on  Infancy  & 
Coverture,  p.  200;  29  Cyc.  1623  ;  21  Am.  &  Eng.  Ency.  of  L.  p.  1039. 

It  is  equally  well  settled  that  the  parent,  although  entitled  to 
the  services  and  earnings  of  his  minor  child,  may  relinquish  or  sur- 
render this  right :  First,  by  failing  to  provide  for  his  child  a  home  \ 
if  he  is  able  to  do  so;  second,  by  such  ill  treatment,  neglect,  or  \ 
cruel  conduct  as  forces  the  child  to  abandon  his  home;  third,  by  ' 
becoming  so  degraded  or  dissolute  a  character  that  his  child  can- 
not in  morals  or  decency  live  with  him ;  and,  fourth,  by  emancipat- 
ing his  child.  And  if,  in  this  case,  the  father  had  failed  to  provide 
a  reasonably  comfortable  home  for  Byrne,  or  if  he  had  treated 
him  in  a  cruel  or  inhuman  manner,  or  if  he  had  so  grossly  neg- 
lected his  parental  duties  as  to  cause  him  to  leave  his  home,  or  if 
his  life  was  so  unworthy  or  discreditable  that  his  son  could  not  in 
decency  or  self-respect  longer  continue  to  recognize  his  authority, 
we  would  have  little  difficulty  in  reaching  the  conclusion  that  the 
father  could  not,  after  driving  him  away,  or  by  his  acts  or  conduct 
forcing  him  to  shift  for  himself  and  make  his  own  living,  thereafter 
lay  claim  to  his  earnings.  All  the  books  are  agreed  upon  this 
point,  and  indeed,  in  the  absence  of  authority,  we  could  have  no 
doubt  that  under  a  state  of  case  like  this  the  father  could  not  have 
the  assistance  of  the  courts  to  aid  him  in  securing  the  services  or 
wages  of  his  child  whom  he  had  compelled  by  neglect,  cruel  treat- 
ment, or  dissolute  habits  to  secure  another  home.  29  Cyc.  p.  1627; 
Godfrey  v.  Hays,  6  Ala.  501,  41  Am.  Dec.  58;  Nightingale  v.  With- 
ington,'l5  Mass.  272,  8  Am.  Dec.  101 ;   Swift  &  Co.  v.  Johnson,  138 


196  RIGHTS   OF   PARENTS   AND    OF   CHILDREN 

Fed.  867,  71  C.  C.  A.  619,  1  L.  R.  A.  (N.  S.)  1161 ;  Tyler  on  Infancy 
&  Coverture,  p.  200. 

But  the  facts  of  this  case  do  not  warrant  us  in  putting  our  deci- 
sion upon  any  of  these  grounds,  and  so,  if  the  judgment  below  is  to 
be  reversed,  it  must  be  because  the  father  had  emancipated  his  son. 
The  doctrine  of  "emancipation,"  looking  at  it  from  a  legal  stand- 
point, is  a  recognition  of  the  right  of  the  parent  to  relinquish  con- 
trol and  authority  over  his  child  to  whose  custody  and  service  he 
is  entitled;  or  to  surrender,  if  lie  so  elects  and  desires,  to  his  minor 
son,  who  is  capable  of  making  his  own  living,  the  right  to  do  so, 
and  the  privilege  of  receiving  the  wages  that  he  earns.  When  this 
right  of  emancipation  has  been  granted,  it  follows  as  a  matter  of 
course  that  the  person  for  whom  the  child  labors  may  pay  him  his 
wages,  and  that  the  child  may  do  with  them  as  he  pleases.  In 
other  words,  when  a  child  has  been  emancipated,  he  occupies  the 
same  legal  relation  towards  the  parent  as  if  he  had  arrived  at  full 
age.  The  legal  duty  of  the  parent  to  maintain  and  support  him  and 
defray  his  necessary  expenses  is  extinguished,  and  so  is  the  right 
of  the  parent  to  claim  the  services  and  wages  of  the  child.  ^ 

There  are  two  kinds  of  emancipation  that  may  be  termed  "ex- 
press" and  "implied."  We  should  say  that  an  "express  emancipa- 
tion" takes  place  when  the  parent  freely  and  voluntarily  agrees  with 
his  child,  who  is  able  to  take  care  of  and  provide  for  himself,  that 
he  may  go  out  from  home  and  earn  his  own  living  and  do  as  he 
pleases  with  his  earnings,  or  when  he  willingly  transfers  to  an- 
other the  custody  and  keeping  of  his  child  without  reference  to  his 
age.  Where  the  emancipation  is  expressly  agreed  upon,  the  parent 
cannot  afterwards  renounce  or  set  aside  the  agreement.  He  is 
bound  by  it  to  the  same  extent  as  he  would  be  by  any  other  con- 
-tract  freely  entered  into.  The  parent  cannot,  after  deliberately  sur- 
rendering parental  control  or  relinquishing  the  right  to  another,  re- 
claim the  services -of  his  child.  An  "implied  emancipation"  results 
when  the  parent,  without  any  express  agreement,  by  his  acts  or 
conduct  impliedly  consents  that  his  minor  son  may  leave  home  and 
shift  for  himself,  have  his  own  time,  and  the  control  of  his  earn- 
ings, and  it  may  be  inferred  from  and  shown  by  circumstances.  But 
where  the  child  leaves  home  and  goes  out  to  make  his  own  living 
under  the  assumption  that  his  parent  has  emancipated  him,  his 
rights  to  his  services  and  earnings  are  not  absolute,  as  in  the  case 
of  an  express  emancipation,  and  the  parent  may,  by  taking  timely 
action,  resume  parental  authority  and  reclaim  the  services  of  his 
child,  but  he  must  not  delay  until  his  implied  emancipation  has  ri- 
pened into  an  express  relinquishment,  or  wait  until  it  would  be 
hurtful  to  the  best  interest  of  the  child  to  interfere  with  his  individ- 
ual aims  and  plans.  It  should,  however,  be  kept  in  mind  that 
whether  or  not  the  father  emancipates  his  minor  child  rests  with 
the  father,  and  not  with  the  child.    The  father  may  by  his  acts  of 


EMANCIPATION    OF   CHILDREN  197 

conduct  relinquish  parental  control  and  authority,  but  the  child  of 
his  own  volition,  in  the  absence  of  mistreatment  or  other  like  cause, 
cannot  sever  the  relation  so  as  to  deny  the  father  the  right  to  his 
services  and  wages  during  his  minority. 

Contenting  ourselves  with  these  broad  statements  of  general  prin- 
ciples, we  will  proceed  to  inquire  whether  the  facts  of  this  case  au- 
thorize us  in  holding  that  the  father  had  emancipated  his  son. 
After  Byrne  had  reached  an  age  when  he  could  make  his  own  liv- 
ing, and  was  mentally  and  physically  able  to  do  so,  his  father  volun- 
tarily consented  that  he  might  leave  his  home,  and  continue  in  the 
employment  of  the  Rounds  Bros,  for  whom  he  had  been  working, 
and  for  something  like  two  years  he  remained  in  thcijf  services,  with 
the  knowledge  and  consent  of  his  father.  During  tfiis  time  he  re- 
ceived his  own  wages,  and  made  such  disposition  of  them  as  he 
desired.  That  he  was  an  industrious,  economical,  and  capable  boy, 
there  is  abundant  evidence.  He  had  the  respect  and  confidence 
of  his  employers,  and  in  a  business  way  was  rapidly  advancing. 
His  father  did  not  object  to  his  employment  until  1906,  or  demand 
his  wages  until  that  time.  He  did  not  request  him  to  return  to  his 
home,  nor  did  he  manifest  any  particular  interest  or  concern  in  his 
welfare.  He  seemed  to  recognize  that  his  son  was  well  situated 
and  comfortably  provided  for,  and  that  his  usefulness  was  being 
promoted  by  the  service  he  was  engaged  in  and  the  interest  his  em- 
ployers were  manifesting  in  his  welfare,  and  so  he  was  willing  to 
give  him  an  opportunity  to  make  his  own  way  in  the  world. 

In  our  opinion  these  facts  were  not  sufficient  to  establish  an  ex- 
press emancipation,  such  as  the  parent  could  not  afterwards  re- 
voke or  set  aside;  but  they  do  show  the  son  left  home  under  cir- 
cumstances that  amounted  to  an  implied  emancipation.  But,  when 
the  appellee  attempted  to  resume  parental  control  and  authority 
after  the  expiration  of  more  than  a  year,  it  was  too  late  to  reclaim 
the  right.  In  this  time  the  interest  and  welfare  of  the  child  had  be- 
come an  important  factor  in  determining  the  rights  of  the  parties. 
In  judging  a  case  like  this,  the  court  will  not  look  exclusively  to 
TheTights  of  the  parent,  but  will  consider  what  is  best  for  the  child. 
The  father,  when  his  child  was  in  some  measure  at  least  a  burden 
to  him,  voluntarily  allowed  him  to  go  out  and  care  for  himself,  and 
after  the  child,  prompted  by  prudent  and  industrious  motives,  had 
become  more  than  self-sustaining,  sought  to  withdraw  the  consent 
he  had  given.  To  permit  him  to  do  so  would,  under  the  circum- 
stances of  this  case,  be  detrimental  to  the  best  interest  of  the  child. 
To  deprive  the  boy  of  his  wages  or  force  him  to  abandon  his  em- 
ployment would  seriously  check  his  aspirations  and  impair,  if  not 
destroy,  the  fine  prospects  for  future  success  that  were  opening  up 
to  him  by  reason  of  his  attentive,  honest,  and  sober  habits. 

We  do  not  wish  to  extend  this  doctrine  of  implied  emancipation 
to  cases  which  do  not  justify  its  fullest  application,  and  do  not 


198  RIGHTS  OP  PARENTS  AND    OF  CHILDREN 

mean  to  hold  that  every  time  a  child  who  is  old  and  strong  enough 
to  work  becomes  tired  of  or  dissatisfied  with  his  home  he  may  leave, 
although  without  objection  on  the  part  of  his  parents,  and  live  at 
some  other  place  and  work  for  other  persons,  and  thereby  sever 
the  obligation  he  owes  to  his  parents  and  destroy  their  right  to  his 
services  and  wages.  Minor  children  cannot  in  this  way  cancel  the 
duty  they  are  under  to  the  parent,  who  by  acting  promptly  may  re- 
claim the  services  of  the  child  and  the  right  to  his  earnings;  but 
the  parent  must  interpose  his  authority  within  a  reasonable  time. 
When  a  father  gives  freedom  to  a  grown  boy  and  tells  him,  in  ef- 
fect, if  not  in  words,  to  go  out  and  make  his  own  living,  and  be 
his  own  man,  and  the  boy,  acting  on  this  implied  consent  or  direc- 
tion, does  commence  for  himself  the  battle  of  life,  and  is  success- 
fully meeting  all  its  requirements,  the  father  will  not,  unless  he  acts 
in  seasonable  time,  be  permitted  to  reclaim  the  boy's  services  or 
resume  the  parental  authority  he  surrendered.  *  *  *  Judgment 
reversed.  ^* 


V.  Action  by  Parent  for  Injuries  to  Child  ^* 


NETHERLAND-AMERICAN  STEAM  NAVIGATION  CO.  v. 

HOLLANDER. 

(Circuit  Court  of  Appeals  of  United  States,   Second  Circuit,  1894.     59  Fed. 

417,  8  C.  C.  A.  169.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  New  York. 

Action  at  law  by  Morris  Hollander  against  the  Netherland- 
Am^ican  Steam  Navigation  Company  Jor  injuries  to  his  minor 
child,  brought  in  the  Supreme  Court  of  the  state  of  New  York, 
and  removed  therefrom  by  defendant.  Verdict  and  judgment  for 
plaintiff.    Defendant  brings  error. 

Wallace,  Circuit  Judge.^^  This  is  a  writ  of  error  by  the  defend- 
ant in  the  court  below  to  review  a  judgment  for  the  plaintiff  ren- 
dered upon  the  verdict  of  a  jury.  It  was  proved  upon  the  trial  that 
the  plaintiff  and  his  daughter,  the  latter  being  of  the  age  of  about 

13  See,  also.  Porter  v.  Powell,  ante,  p.  168;  Smith  v.  Gilbert,  SO  Ark.  525, 
98  S.  W.  115,  8  L.  R.  A.  (N.  S.)  1098  (1906). 

Effect  of  emancipation  on  right  to  recover  for  injuries  to  child,  see  Mc- 
Carthy V.  Boston  &  L.  R.  Corp..  POSt,  p.  200. 

14  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  ReL  (3d  Ed.) 
§§  132-134. 

15  Part  of  the  opinion  is  omitted. 


ACTION    BY    PARENT   FOR   INJURIES   TO    CHILD  199 

five  years,  were  passengers  on  the  defendant's  steamship  Amster- 
dam, on  a  voyage  from  Rotterdam  to  New  York,  in  September, 
1891 ;  that  while  they  were  walking  upon  the  deck  of  the  vessel  an 
iron  gate  fell  on  the  child,  breaking  her  arm;  that  the  plaintiff  had 
employed  a  surgeon,  and  had  taken  the  child  to  the  hospital  every 
fortnight  for  about  six  months  after  her  injury ;  that  he  had  in- 
curred expenses  for  surgical  treatment  and  medicines;  that  since 
the  accident — a  period  of  something  over  a  year  before  the  trial — 
the  child  had  suffered  from  her  injuries,  and  had  not  been  able  to 
use  her  arm  as  she  did  before  the  accident ;  that  she  continued  to 
have  restless  nights,  and  had  no  one  to  take  care  of  her  but  the 
plaintiff.  The  evidence  tended  to  show  that  the  child's  injuries 
were  caused  by  the  negligence  of  the  defendant.  No  testimony 
was  introduced  to  show  that  the  child  had  ever  rendered  any  serv- 
ices for  the  plaintiff,  or  that  she  was  capable  of  doing  so. 

The  exceptions  taken  upon  the  trial,  and  the  assignments  of  error 
which  have  been  argued  at  the  bar,  raise  the  questions  (1)  whether 
the  action  was  maintainable  either  for  expenses  or  for  loss  of  serv- 
ices; and,  (2)  if  maintainable  for  the  loss  of  services,  whether  there 
was  any  evidence  which  justified  the  trial  judge  in  instructing  the 
jury  that  they  might  award  damages  for  prospective  loss  of  services. 

.A  father  whose  infant  child  has  been  injured  by  the  tort  or  neg- 
ligence of  a  third  person  has  a  right  of  recovery  to  the  extent  of  his 
own  loss.  He  cannot  recover  for  the  immediate  injury  to  the  child. 
His  action  rests  upon  his  right  to  the  child's  services,  and  upon  his 
duty  of  maintenance.  When  he  is  deprived  of  the  right,  or  put  to 
extra  expense  in  fulfilling  the  duty,  in  reason  and  justice  he  ought 
to  be  permitted  to  have  recourse  to  the  wrongdoer  for  indemnity. 
He  is  entitled  to  be  indemnified  for  his  expenses  necessarily  incur- 
red in  the  cure  and  care  of  the  child,  and  for  the  loss  of  the  child's 
services,  past  and  prospective,  during  minority,  consequent  upon 
the  injury.  By  some  authorities  the  loss  of  service  has  been  re- 
garded as  the  foundation  of  the  action ;  and  the  English  courts,  in- 
fluenced by  this  strict  view  of  the  gravamen  of  the  action,  have  de- 
cided that  a  father  has  no  remedy,  even  for  his  expenses,  where  the 
child  is  of  such  tender  years  as  to  be  incapable  of  rendering  any 
services.  The  authorities  in  this  country  approve  a  more  liberal 
and  more  reasonable  doctrine,  and,  basing  the  right  of  action  upon 
the  parental  relation,  instead  of  that  of  master  and  servant,  allow 
the  father  to  recover  his  consequential  loss,  irrespective  of  the  age 
of  the  minor.  Dennis  v.  Clark,  2  Cush.  (]\Iass.)  347,  48  Am.  Dec. 
671;  Cuming  v.  Railroad  Co.,  109  N.  Y.  95,  16  N.  E.  65;  Clark  v. 
Bayer,  32  Ohio  St.  300,  30  Am.  Rep.  593 ;  Durden  v.  Barnett,  7  Ala. 
169;  Sykes  v.  Lawlor,  49  Cal.  236.  *  ♦  *  The  judgment  is  af- 
firmed. 


200  EIGHTS  OF   PARENTS  AND    OP  CHILDREN 


McCarthy  v.  boston  &  l.  r.  corp. 

(Supreme  Court  of  Massachusetts,  1SS9.     148  Mass.  550,  20  N.  E.  182   2  L 

R.  A.  60S.) 

Action  by  Dennis  McCarthy  against  the  Boston  &  Lowell  Rail- 
road Corporation,  for  damages  incurred  „by  loss  of  earnings  of 
plaintiff's  minor  son,  in  consequence  of  injuries  received  by  him  and 
_caused  by  defendant's  negligence.  Judgment  for  defendant,  and 
plaintiff  excepts. 

C.  AivivEN,  J.  The  facts  disclosed  in  the  present  case  were  suf- 
ficient, if  taken  by  themselves  alone,  to  warrant  the  jury  in  finding 
an  implied  emancipation  by  the  plaintifif  of  his  son,  which  would 
cut  off  the  father's  right  to  collect  and  have  the  son's  earnings,  or 
to  maintain  an  action  of  tort  founded  on  the  loss  of  the  son's  serv- 
ices. Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101 ; 
Wodell  V.  Coggeshall,  2  Mete.  89,  35  Am.  Dec.  391 ;  Abbott  v.  Con- 
verse, 4  Allen,  530,  533 ;  Dumain  v.  Gwynne,  10  Allen,  270,  272 ; 
The  Etna,  1  Ware,  462,  Fed.  Cas.  No.  4,542;  Stansbury  v.  Bertron, 
7  Watts  &  S.  (Pa.)  362. 

But  the  plaintiff  contends  that  he  did  not  in  his  own  mind  intend 
to  emancipate  his  son,  and  the  only  question  presented  by  the  bill 
of  exceptions  is  whether  the  plaintiff's  undisclosed  intent  was  a  ma- 
terial element  to  be  considered.  If  it  was  material,  no  doubt  the 
plaintiff  might  testify  to  it  directly.  But  we  think  it  was  not  ma- 
terial. If  a  father  drives  his  minor  son  out  of  doors,  and  turns 
him  upon  the  world  to  shift  for  himself,  and  then  sues  for  his  wages, 
he  cannot  be  heard  in  court  to  say  that  in  his  own  mind  he  never- 
theless retained  the  intention  of  claiming  them.  Emancipation  is 
a  practical  thing,  and  may  be  proved  by  conduct  and  acts;  and 
the  father's  secret  intent,  contrary  to  the  effect  of  his  acts,  could 
not  affect  the  son's  right.  By  way  of  illustration,  see  West  v. 
Piatt,  127  Mass.  367,  372,  and  cases  there  cited ;  Ford  v.  Ford,  143 
Mass.  577,  578,  10  N.  E.  474;  O'Donnell  v.  Clinton,  145  Mass.  461, 
463,  14  N.  E.  747. 

The  father's  claim  to  recover  damages  for  a  personal  injury  to 
the  son  rests  on  the  same  ground  as  a  claim  to  recover  for  his 
wages.  He  had  forfeited  his  rights  by  his  acts.  Exceptions  over- 
ruled. 

SORRELLS  v.  MATTHEWS. 

(Supreme  Court  of  Georgia,  1907.     129  Ga.  319,  58  S.   E.  819,  13  L.  R.  A. 

[N.  S.]  357. 

Action  by  J.  M.  Sorrells  against  C.  R.  Matthews,  a  teacher  of  a 
public  school,  for  damages  for  expelling  plaintiff's  children  from 
the  school.  There  was  judgment  dismissing  the  complaint,  and 
plaintiff  brings  error. 


ACTION   BY   PARENT   FOR  INJURIES  TO   CHILD  201 

Fish,  C.  J.^"  One  ground  of  the  motion  to  dismiss  the  petition 
was  that  it  set  forth  no  right  of  action  in  the  plaintiff.  In  our 
opinion  this  ground  was  well  taken,  and  therefore  the  necessity  of 
dealing  with  any  other  question  raised  by  the  record  is  obviated. 
In  no  case  can  a  father  maintain  an  action  for  a  wrong  done  to 
his  minor  child,  unless  the  father  has  incurred  some  direct  pecun- 
iary injury  therefrom,  in  consequence  of  loss  of  service,  or  ex- 
pense necessarily  consequent  thereon.  Bell  v.  Wooten,  53  Ga.  684; 
Central  Railroad  Co.  v.  Brinson,  64  Ga.  475 ;  Frazier  v.  Georgia 
Railroad  Co.,  101  Ga.  70,  28  S.  E.  684;  Hurst  v.  Goodwin,  114  Ga. 
586,  40  S.  E.  764,  88  Am.  St.  Rep.  43. 

_Civ.  Code  1895,  §  3816,  providing  that  "every  person  may  recover 
for  torts  committed  to  himself,  or  his  wife,  or  his  child,  or  his  ward, 
or  his  servant,"  is  merely  declaratory  of  the  common  law.  Frazier 
V.  Georgia  Railroad  Co.,  101  Ga.  70,  28  S.  E.  684.  At  common  law 
the  parent's  right  to  recover  for  a  tort  to  his  minor  child  is,  by 
legal  fiction,  predicated  upon  the  relation  of  master  and  servant. 
Frazier  v.  Georgia  Railroad  Co.,  101  Ga.  70,  28  S.  E.  684,  and  cases 
cited.  In  Spear  v.  Cummings,  23  Pick.  (Mass.)  224,  34  Am.  Dec. 
53,  it  was  held  that  "the  teacher  of  a  town  school  is  not  liable  to  any 
action  by  a  parent,  for  refusing  to  instruct  his  children."  This 
ruling  was  put  upon  the  ground  that  there  is  no  privity  of  contract 
between  the  parent  and  the  teacher;  the  latter  being  responsible 
on  his  contract  only  to  the  town  by  which  he  is  employed  and  paid. 
In  Sherman  v.  Charlestown,  8  Cush.  (Mass.)  161,  Shaw,  C.  J.,  re- 
ferring to  the  case  just  cited,  in  which  he  also  delivered  the  opinion, 
said  that  the  court  were  of  opinion,  among  other  reasons,  that 
the  action  was  misconceived,  "because  the  father  is  not  the  per- 
son injured  and  entitled  to  recover  damages  in  his  own  right."  In 
Stephenson  v.  Hall,  14  Barb.  (N.  Y.)  222,  it  was  held  that  an  action 
will  not  lie  in  behalf  of  a  parent,  against  the  town  superintendents 
of  public  schools,  for  expelling  and  excluding  the  plaintiff's  minor 
child  from  the  common  schools,  nor  for  damages  sustained  by  the 
parent  in  bringing  an  appeal  to  the  state  superintendent  of  com- 
mon schools,  to  get  such  child  reinstated  in  the  schools.  *  *  * 
In  Donahoe  v.  Richards,  38  Me,  376,  61  Am.  Dec,  256,  it  was  held 
that  the  parent  of  a  child  expelled  from  a  public  school  by  order  of 
the  superintending  school  committee  can  maintain  no  action  against 
the  members  of  the  committee  for  such  expulsion.  In  delivering 
the  opinion,  Appleton,  J.,  said :  "In  this  case,  there  is  no  act  done 
by  which  the  ability  of  the  child  to  render  service  is  diminished. 
The  school  is  for  her  benefit  and  instruction.  The  education  is  giv- 
en to  her;  and,  if  wrongfully  deprived  thereof,  the  loss  of  such  dep- 
rivation falls  on  her.  The  wrong  committed,  the  injury  done,  is 
done  to  her  alone,  and,  if  her  rights  have  been  violated,  she  alone 

18  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  abridged. 


202  RIGHTS  OP  PARENTS  AND    OP  CHILDREN 

is  entitled  to  compensation."  So,  in  Boyd  v.  Blaisdell,  15  Ind.  JZ^ 
where  the  plaintiff  sued  the  school  trustees  of  a  township  for  re- 
fusing admission  to  his  children  into  a  district  school  in  such  town- 
ship, it  was  held  that  the  plaintiff  could  not  maintain  the  action,  as 
the  parent  can  only  sue  for  such  injuries  to  his  child  as  occasion 
loss  of  service.    For  all  other  injuries  the  child  must  sue. 

All  the  cases  cited,  holding  that  a  parent  cannot  recover  for  the 
expulsion  of  his  child  from  a  public  school,  were  put  upon  the 
common-law  doctrine  (Hall  v.  Hollander,  4  Barn.  &  Cress.  660,  5 
East,  45 ;  Flemington  v.  Smithers,  2  Carr.  &  Payne,  292-578 ;  Fra- 
zier  V.  Georgia  Railroad  Co.,  101  Ga.  70,  28  S.  E.  684,  and  citations) 
that  a  parent  cannot  maintain  an  action  for  an  injury  to  his  child 
which  does  not  result  in  loss  of  service,  or  cause  expense  to  the 
parent.  We  have  been  able  to  find  only  one  reported  case  out  of 
harmony  with  this  rule,  viz.,  Roe  v.  Deming,  21  Ohio  St.  666,  where 
it  was  held:  "The  father  of  a  child  entitled  to  the  benefits  of  the 
public  school  of  the  subdistrict  of  his  residence  may  maintain  an 
action  against  the  teacher  of  the  school  and  the  local  directors  of 
the  subdistrict  for  damages  for  wrongfully  expelling  the  child  from 
the  school."  There  was  no  further  opinion  rendered,  and  no  au- 
thority cited.    We  do  not  agree  to  the  soundness  of  this  dictum. 

Counsel  for  plaintiff  in  error  cites  the  case  of  Board  of  Educa- 
tion of  Cartersville  v.  Purse,.  101  Ga.  422,  28  S.  E.  896,  41  L.  R.  A. 
593,  65  Am.  St.  Rep.  312,  admitting,  however,  that  "the  Purse  Case 
did  not  decide  the  question  involved  here,  but  [contending]  the 
analogous  line  of  reasoning  would  establish  the  soundness  of  our 
contention."  In  that  case  it  was  held  that  a  board  of  education 
having  the  charge  and  control  of  a  system  of  free  schools  estab- 
lished by  law  and  supported  by  taxation  has  the  right  to  suspend 
from  attendance  upon  school  children  whose  parent,  in  undertaking 
to  interfere  with  the  discipline  of  a  teacher  over  one  of  the  children, 
enters  the  schoolroom  of  such  teacher,  during  school  hours,  and, 
in  the  presence  of  the  assembled  pupils,  is  guilty  of  conduct  toward 
such  teacher  which  is  subversive  of  the  discipline  of  the  school. 
The  line  of  reasoning  in  the  opinion  in  that  case,  delivered  by  Mr. 
Justice  Cobb,  led  to  the  conclusion  that  "it  would  be  contrary  to 
the  policy  of  our  law,  based  as  it  is  upon  the  common  law,  to  be- 
stow upon  the  child  in  the  matter  of  its  education  any  right  in- 
dependent of  the  parent."  From  this,  counsel  argues  that  it  fol- 
lows that,  when  a  child  is  wrongfully  expelled  from  a  public  school, 
the  right  of  action  for  such  expulsion  is  in  the  parent,  and  not  in 
the  child. 

But  the  very  opinion  upon  which  counsel  relies  recognizes  that 
there  is  a  right  of  action  in  a  child  for  his  wanton  and  malicious 
expulsion  or  exclusion  from  a  public  school,  in  which  he  has  been 
lawfully  entered  by  his  parent,  and  authorities  to  this  effect  are 
there  cited.    On  page  444  of  101  Ga.,  page  904  of  28  S.  E.  (41  L.  R. 


ACTION   BY   PARENT  FOR   INJURIES  TO   CHILD  203 

A.  593,  65  Am.  St.  Rep.  312),  the  learned  justice  said:  "While  it 
is  the  act  of  the  parent  or  guardian  which  places  the  child  in  the 
school  and  puts  him  in  a  position  where  he  can  obtain  the  benefits 
of  the  system,  this  does  not  prevent  a  duty  from  arising  on  the  part 
of  the  school  authorities  towards  the  child  to  abstain  from  unlaw- 
ful conduct  which  would  deprive  the  child  of  the  benefit  which  the 
act  of  the  parent  has  secured  to  him.  The  moment  the  child  is 
placed  in  school  this  duty  arises.  A  breach  of  this  duty  will  be  a 
tort  for  which  the  child  can  recover  in  a  proper  action  against  the 
person  wantonly  and  maliciously  depriving  him  of  the  benefits 
which  he  would  receive  from  the  school.  *  *  *  Out  of  this 
breach  of  duty  damage  arises  to  the  parent,  as  well  as  to  the  child. 
The  parent  therefore  has  the  right  to  appeal  to  the  courts  to  com- 
pel the  child  to  be  admitted  or  reinstated,  as  the  case  may  be,  and 
also  to  appeal  to  the  courts  by  his  action  for  damages  for  the 
amount  which  he  would  be  required  to  expend  in  the  education  of 
his  child.  This  child  would  also  have  a  right  against  the  individual 
thus  wantonly  and  maliciously  depriving  him  of  the  benefit  which 
is  secured  to  him  by  the  law  in  the  event  the  parent  sees  proper  to 
enter  him  in  the  school."  The  same  learned  justice,  in  the  opinion 
rendered  in  Hurst  v.  Goodwin,  114  Ga.  585,  40  S.  E.  764,  88  Am.  St. 
Rep.  43,  said :  "It  does  not,  however,  follow  that  the  right  of  ac- 
tion for  injuries  of  every  character  to  a  minor  child  is  in  the  father 
alone.  If  the  injury  is  one  from  which  the  father  does  not  sustain 
any  damage — that  is,  which  does  not  destroy  or  impair  the  ability 
of  the  child  to  render  services  to  the  father — there  is  no  right  of 
action  in  the  father  for  the  wrong  done  the  child." 

In  the  case  with  which  we  are  dealing^^,  under  the  facts  alleged, 
a  right  of  action  existed,  it  was  in  the  children,  not  in  the  father, 
and  it  is  their  right,  not  his,  which  he  is  seeking  to  exercise  in  his 
own  behalf.  He  makes  no  claim  for  money  expended  in  the  educa- 
tion of  his  children,  in  consequence  of  their  expulsion  from  the  pub- 
lic school.  Indeed,  his  petition  indicates  that  he  spent  no  money 
for  this  purpose,  as  it  shows  that  they  were  only  out  of  the  school 
about  a  month,  during  which  time  he  was  trying  to  get  them  re- 
instated therein.  There  is  no  allegation  that  he  was  put  to  any 
other  expense  by  reason  of  their  being  expelled  from  the  school. 
*     *     *    Judgment  affirmed. 


204  EIGHTS  OF  PARENTS  AND    OF  CHILDREN 


VI.  Action  by  Parent  for  Seduction  or  Debauching  of  Daughter  '* 


MIDDLETON  v.  NICHOLS. 

(Supreme  Court  of  New  Jersey,  1899.    G2  N.  J.  Law,  636,  43  Atl.  575.) 

Action  by  William  W.  Middleton  against  George  R.  Nichols. 
Judgment  for  plaintiff.  Application  for  rule  to  show  cause  why 
verdict  should  not  be  set  aside. 

LiPPiNCOTT,  J.^*  *  *  *  The  action  is  one  by  the  father  to  re- 
cover damages  for  the  seduction  of  his  daughter  by  the  defendant, 
in  behalf  of  whom  this  application  for  a  rule  to  show  cause  why 
the  verdict  against  him  should  not  be  set  aside  is  made.  The 
daughter  became  pregnant,  and  was  delivered  of  a  child,  and  died 
about  three  weeks  after  delivery.  She  was  about  16  years  of  age 
at  the  time  of  her  death. 

Whether  actual  loss  of  service  is  necessary  to  maintain  this  ac- 
tion, it  is  not  necessary  to  decide.  I  have  always  understood  the 
principle  to  be  that,  if  the  relation  of  servant  to  the  father  be  es- 
tablished, that  is  all  that  is  necessary  to  sustain  the  action,  and  that 
the  service  may  have  been  either  actual  or  constructive,  of  which 
the  father  was  deprived.  "While  the  daughter  is  under  age,  and 
is  maintained  by  the  parent,  he  always^has  sufficient  interest  in  her 
labor  and  services  to  afford  a  foundation  for  this  action."  Kensey, 
C.  J.,  in  Van  Horn  v.  Freeman,  6  N.  J.  Law,  322.  This  was  the 
doctrine  approved  by  the  text  of  the  opinion  in  Ogborn  v.  Francis, 
44  N.  J.  Law,  441,  43  Am.  Rep.  394,  and  seems  to  be  the  rule  in  all 
the  well-considered  cases  which  have  been  brought  to  my  attention. 
The  right  to  control,  with  the  actual  control  of,  her  services,  if  any 
were  rendered  or  are  to  be  rendered  to  him,  seems  to  be  the  test 
or  gravamen  of  the  right  of  action.  She  may  have  been  in  the 
service  oi  a.  third  person  at  the  time  'of  the  seduction,  provided 
fhafthe  case  be  such  that  the  father  had  the  legal  right  to  her  serv- 
ices, and  might  have  commanded  them  at  pleasure.  Bartley  v. 
Richtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338. 

It  is  only  necessary  to  show  that  the  parent  has  the  legal  right 
at  the  time  to  command  the  service  of  the  child,  and  the  English 
rule,  so  far  as  it  requires  actual  service  or  actual  residence  with 
the  father  at  the  time,  has  been  thus  modified  by  American  courts. 
White  V.  Alurtland,  71  111.  250,  22  Am.  Rep.  100.  In  case  of  a 
minor,  it  is  immaterial  whether  she  lives  with  her  father  or  not. 

17  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§§  135-137. 

18  Part  of  the  opinion  is  omitted. 


ACTION    BY    PARENT   FOR    SEDUCTION    OF   DAUGHTER  205 

If  she  be  at  school  abroad,  she  is  his  servant;  that  is,  he  has  a 
right  to  her  services,  and  can  recall  her  when  he  pleases.  Reeve, 
Dom.  Rel.  (4th  Ed.)  363,  364.  If  any  other  rule  prevailed,  no  ac- 
tion could  be  maintained  for  this  injury  in  the  higher  ranks  of  life, 
where  no  actual  services  are  usually  performed  or  expected  to  be 
performed.  Maunder  v.  Venn,  Moody  &  M.  323.  And  in  this  lat- 
ter case  Littledale,  J.,  said  to  the  jury:  "Proof  of  any  acts  of 
service  was  unnecessary.  It  was  sufficient  that  she  was  living  with 
her  father,  forming  a  part  of  his  family,  and  liable  to  his  control 
and  command."  "The  law  seems  to  be  settled  that  when  the  daugh- 
ter at  the  time  of  her  seduction  is  under  the  age  of  twenty-one 
years,  and  the  father  was  then  entitled  to  her  services  and  at- 
tentions, the  law  conclusively  presumes  that  the  relation  of  master 
and  servant  exists  between  them,  although  at  the  time  of  the  se- 
duction she  may  be  in  the  actual  service  of  another,  under  a  con- 
tract made  by  herself  for  her  own  benefit."  Hudkins  v.  Haskins, 
22  W.  Va.  645  ;  21  Am.  &  Eng.  Enc.  Law,  1016,  and  cases  cited. 

Cases  are  numerous  where,  when  the  father  by  his  own  act  has 
emancipated  his  daughter  from  his  control,  or  released  his  right 
to  her  services,  or  has  abandoned  her,  the  right  of  action  has  been 
denied.  21  Am.  &  Eng.  Enc.  Law,  1015-1020.  But  the  loss  of  ac- 
tual service  in  this  case  was  amply  established,  and  not  disputed. 
All  cases  unite  in  declaring  that  the  proof  of  the  slightest  service, 
of  which  the  parent  has  been  deprived,  is  all  that  is  necessary.  In 
this  case  it  is  conceded  that  the  daughter  was  under  age,  and  that 
the  father  was  legally  entitled  to  her  services.  The  evidence  is 
uncontradicted  that  the  plaintiff,  as  her  father,  had  the  benefit  of 
services  rendered  by  her  to  him.  She  made  her  home  in  his  house- 
hold, and  when  at  home  she  assisted  her  rnother  in  performing 
household  duties.  This  was  a  service  to  the  father.  He  also  re- 
ceived her  wages  that  she  obtained  from  her  work  in  the  factory 
in  which  she  was  employed  at  times,  and  the  wages  were  expended 
by  her  father  for  her  clothing,  partly,  and  partly  for  other  family 
needs.  This  was  the  situation  at  the  time  of  the  seduction.  His 
right  of  action,  therefore,  was  established  beyond  dispute,     *     *     * 

The  only  other  objection  to  the  verdict  is  that  it  was  excessive. 
The  verdict  was  for  the  sum  of  $2,000.  This  contention  of  the  de- 
fendant seems  to  be  founded  upon  the  idea  that  the  plaintiff  was 
entitled  to  recover  only  the  financial  value  of  the  services  of  his 
daughter  in  his  household  or  otherwise  until  she  should  arrive  at 
the  age  of  21  years,  or  until  she  should  be  otherwise  emancipated 
from  such  service,  and  the  expenses  of  her  confinement  and  sick- 
ness attendant  thereon.  But  this  view  of  the  measure  or  elements 
of  damage  in  this  class  of  actions  is  at  this  day  an  entirely  erro- 
neous one.  Whatever  the  anomaly  may  be  between  the  basis  of 
this  action,  and  the  measure  or  elements  of  damages  recoverable 
on  such  basis,  it  is  well  established  now  that  not  only  are  the 


206  EIGHTS   OF    PARENTS   AND   OF   CHILDREN 

value  of  the  loss  of  service,  and  the  expenses  of  pregnancy  and 
"sickness,  recoverable,  but  compensation  can  be  made  to  the  parent 
for  the  humiliation  and  disgrace  brought  upon  himself  and  his  fam- 
ily, and  for  the  mental  anguish  suffered,  by  reason  of  the  ruin  of 
his  daughter  and  the  dishonor  of  his  household.  The  loss  of  serv- 
ice is  not  the  rule  of  damage.  It  has  been  said  that  "it  is  scarcely 
an  item  in  the  account."  The  real  ground  of  damage  is  the  dis- 
grace of  the  family.  The  loss  of  service  in  many — in  most — in- 
stances could  hardly  be  accounted  anything,  and  yet  often  where 
the  least  service  is  or  can  be  performed  the  highest  damages  can 
be  given.  The  loss  of  service  is  but  one  step  to  that  high  plane 
of  injury  and  wrong  for  which  the  parent  is  entitled  to  compen- 
sation. Damages  are  given  to  the  plaintiff  standing  in  the  rela- 
tion of  parent.  Barbour  v.  Stephenson  (C.  C.)  32  Fed.  66;  Simp- 
son V.  Grayson,  54  Ark.  404,  16  S.  W.  4,  26  Am.  St.  Rep.  52 ;  Reeve. 
Dom.  Rel.  (4th  Ed.)  362;  Terry  v.  Hutchinson,  L.  R.  3  Q.  B. 
602 ;  Coon  v.  Moffitt,  3  N.  J.  Law,  583,  4  Am.  Dec.  392 ;  Van  Horn 
V.  Freeman,  6  N.  J.  Law,  322;  Ogborn  v.  Francis,  44  N.  J.  Law, 
441,  43  Am.  Rep.  394;  Hudkins  v.  Haskins,  22  W.  Va.  645;  Stoudt 
V.  Shepherd,  7Z  Mich.  588,  41  N.  W.  696;  Hatch  v.  Fuller,  131  Mass. 
574;  Wilds  v.  Bogan,  57  Ind.  453;  Bedford  v.  McKowl,  3  Esp. 
119;  White  v.  Murtland,  71  111.  250,  22  Am.  Rep.  100;  Herring  v. 
Jester,  2  Houst.  (Del.)  66. 

The  plaintiff  was  the  head  of  a  family  consisting  of  himself,  his 
wife,  and  other  children ;  and  the  evidence  shows  that  they  were 
in  all  respects  an  estimable  family,  and  in  good  repute  in  the  com- 
munity in  which  they  resided.  *  *  *  The  application  for  the 
rule  is  refused. 


VII.  Gifts,  Conveyances,  and  Contracts  Between  Parent  and 

Child^» 


EIGHMY  V.  BROCK. 

(Supreme  Court  of  Iowa,  1905.    126  Iowa,  535,  102  N.  W.  444.) 

Weaver,  J.  ^"  On  March  2,  1890,  onejohn  Owens  died  intestate, 
seised  of  a  farm  of  160  acres  in  Taylor  county,  Iowa.  His  widow, 
Electa  Owens,  and  two  minor  daughters,  Ethel  E.  and  Delia  T., 
the  plaintiff  herein,  were  the  only  heirs  and  beneficiaries  of  his  es- 
tate, each  becoming  entitled  to  a  one-third  part.   On  August  8,  1895, 

19  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3clEd.) 
§  141. 

2  0  Part  of  the  opinion  is  omitted. 


GIFTS,   CONVEYANCES,  AND   CONTRACTS  207 

the  widow  was  married  to  L.  W.  Brock,  the  defendant.  The  Elsin- 
tiff  remained  a  member  of  the  family  until  her  marriage  in  Jan- 
uary, 1903.  At  the  date  of  the  mother's  marriage  with  Brock,  plain- 
tiff was  about  12  years  of  age,  and  arrived  at  her  majority  October 
22,  1901.  Eight  days  later  she  united  with 'her  mother  in  conveying 
their  respective  interests  in  the  land  to  the  defendant.  In_c^onsid- 
eration  of  the  conveyance  by  plaintiff,  defendant  made  to  her  his 
promissory  note  for  $1,000,  due  six  years  after  date,  without  in- 
terest. On  September  30,  1902,  defendant  discounted  and  took  up 
his  note"T~  the  total  amount  paid  to  the  plaintiff  in  discharge  of 
s'aid  obligation  being  $694.53. 

The  plaintiif  now  alleges  that  the  said  conveyance  was  obtained 
by  artifice,  fraud,  and  undue  influence;  that  defendant  took  advan- 
tage of  her  youth  and  inexperience,  and  of  her  dependent  situation 
as  a  member  of  the  family,  and  by  such  means,  and  by  misrepre- 
sentations as  to  the  value  of  her  interest  in  the  land,  induced  her 
to  part  with  it  for  a  grossly  inadequate  consideration.  She  tenders 
a  return  of  the  money  received  by  her,  and  asks  to  have  the  convey- 
ance canceled,  and  that  she  have  an  accounting  for  the  rents  and 
profits  received  by  the  defendant.  The  defendant  denies  all  charges 
of  fraud  and  wrong  on  his  part,  and  alleges  that  plaintiff  has  rat- 
ified the  conveyance,  and  cannot  be  heard  to  ask  for  its  cancellation. 
The  trial  court  found  for  the  plaintiff  upon  the  issues  of  fact.  The 
decree  entered  permits  the  defendant  to  retain  the  title  to  the  land, 
but  requires  him  to  account  and  pay  therefor  at  its  proved  value. 
The  value  of  the  entire  farm  is  placed  at  $8,000,  one-third  of  which 
would  be  $2,666.  But  the  court  finds  that  the  interest  of  the  plain- 
tiff, being  undivided,  is  therefore  worth  something  less  than  its 
full  fractional  part  of  the  value  of  the  land  as  a  whole,  and,  for  this 
reason,  discounts  or  reduces  the  estimated  value  of  the  one-third  to 
$2,466.  This  sum,  increased  by  plaintiff's  share  of  the  rents  and 
profits,  makes  up  an  aggregate  of  $3,426,  for  which  the  defendant 
was  required  to  account.  Against  this  sum  the  court  allowed  him 
credit  for  improvements  made  and  incumbrances  paid  off,  $866,  and 
the  face  of  the  note  for  $1,000  which  he  had  given  to  plaintiff,  leav- 
ing a  remainder  of  $1,560,  for  which  judgment  was  entered  in 
plaintiff's  favor,  and  made  a  charge  upon  the  land. 

From  this  decree  the  defendant  first  perfected  an  appeal.  The 
plaintiff  also  appeals  from  so  much  of  said  decree  as  reduces  or 
discounts  the  value  of  the  undivided  third  of  the  land  by  the  sum 
of  $200,  and  from  the  provision  which  charges  her  with  the  full 
face  of  defendant's  note,  instead  of  the  sum  actually  paid  by  him 
in  discharge  of  the  debt. 

It  will  be  seen  from  this  statement  that  the  question  presented  is 
principally  one  of  fact,  and,  without  reviewing  the  testimony  gener- 
ally, we  have  to  say  we  agree  with  the  trial  court  in  its  conclusion 
that  the  conveyance  in  question  was  obtained  in  a  manner  and  un- 


208  RIGHTS   OF   PARENTS   AND   OF   CHILDREN 

der  circumstances  which  clearly  entitle  plaintiff  to  equitable  relief. 
The  plaintiff  was  an  inexperienced  girl,  and  a  member  of  the  de- 
fendant's family.  That  the  defendant  had  for  some  time  harbored 
the  purpose  of  obtaining  the  land  is  proven,  and  that  immediately 
upon  plaintiff's  arrival  at  the  age  of  18  years,  and  while  she  was  still 
an  inmate  of  his  household,  he  took  the  deed  in  controversy,  is  not 
denied.  Conveyances  made  under  such  circumstances  are  viewed 
by  the  courts  with  distrust,  and  the  parent  or  guardian  who  seeks 
^"cT  profit  by  such  a  transaction  assumes  the  burden  of  negativing 
the  inference  of  fraud  and  undue  influence.  Chidester  v.  Turnbull, 
117  Iowa,  168,  90  N.  W.  583;  Mallow  v.  Walker,  115  Iowa,  238, 
88  N.  W.  452,  91  Am.  St.  Rep.  158;  Harper  v.  Kissick,  52  Iowa,  7ZZ, 
3  N.  W.  449. 

Under  the  record  here  presented,  it  cannot  be  doubted  that  de- 
fendant obtained  the  property  at  a  grossly  inadequate  consideration 
— an  inadequacy  which  was  materially  augmented  by  the  act  of  de- 
fendant in  obtaining  the  plaintiff's  acceptance  of  a  note  payable 
six  years  in  the  future,  without  interest,  and  soon  thereafter  paying 
the  same  at  a  discount  of  more  than  $300.  Moreover,  we  think  the 
record  shows  that  defendant  misrepresented  to  the  plaintiff  the 
value  of  her  interest  in  the  property,  and  that  he  was  aided  in  the 
accomplishment  of  his  purpose  by  advice  of  his  wife  given  to  her 
daughter  to  accept  his  offer,  and  thereby  avoid  domestic  discord. 
The  claim  of  the  defendant  that,  by  accepting  the  money  on  the 
note  some  months  after  the  conveyance,  plaintiff  ratified  the  sale, 
cannot  be  sustained.  She  was  then  still  a  member  of  defendant's 
family,  and  was  less  than  19  years  of  age;  and,  while  the  feeling 
between  her  and  defendant  had  been  somewhat  unpleasant,  over 
matters  having  no  connection  with  property  rights  and  interests, 
there  is  nothing  to  show  that  she  at  this  time  knew  or  realized  that 
she  had  been  overreached  in  the  deal  with  her  stepfather.  Rat- 
ification presupposes  the  withdrawal  of  the  undue  influence,  and  a 
free,  intelligent  assent  to  the  contract  by  the  person  against  whom 
it  is  asserted,  after  knowledge  of  the  real  nature  of  the  transac- 
tion is  or  ought  to  be  known  to  such  person.  2  Pomeroy's  Eq.  Jur. 
§  964.  We  are  therefore  satisfied  that  the  defendant's  appeal  can- 
not be  sustained. 

Upon  the  plaintiff's  appeal,  we  are  of  the  opinion  that  no  good 
or  equitable  reason  exists  for  permitting  the  defendant  to  have 
credit  for  a  full  $1,000,  when  the  full  amount  of  his  payment  was 
but  $694.53.  If,  as  the  court  below  well  found,  the  defendant  was 
properly  chargeable  with  fraud  in  obtaining  this  conveyance,  no  one 
circumstance  connected  with  the  deal  affords  more  convincing  sup- 
port to  that  finding  than  is  found  in  the  fact  that,  after  convincing 
plaintiff  that  $1,000  was  a  fair  compensation  for  her  property,  tie 
procured  her  acceptance  of  promissory  note  having  a  present  value 
of  less  than  $700.    To  permit  him  now  to  take  credit  for  $1,000  is 


GIFTS,  CONVEYANCES,  AND  CONTRACTS  209 

Jtp  permit  him  to  profit  by  his  own  wrong,  at  the  expense  of  the 
person  whom  we  find  entitled  to  relief  against  it.  Neither  do  we 
coincide  in  the  view  that  if  the  land  was  worth  $8,000 — and  this  is 
certainly  a  low  estimate,  under  the  testimony  of  the  witnesses — 
the  value  of  the  interest  of  the  plaintiff's  one-third  should  be  es- 
timated at  anything  less  than  one-third  of  that  sum.  While  one 
witness,  on  being  pressed  by  counsel,  said  that  he  thought  the 
value  of  a  fractional  interest  was  less  than  a  like  fraction  of  the 
value  of  the  whole,  he  offers  no  reason  or  explanation  therefor; 
and,  in  our  judgment,  it  does  not  afford  sufficient  ground  on  which 
to  sustain  the  order  of  the  court  in  this  respect. 

It  follows  that  the  decree  of  the  district  court  must  be  affirmed 
on  the  defendant's  appeal,  and  reversed  on  the  appeal  of  the  plain- 
tiff.    *     *     * 

"*^         COOLEY  P.&  D.REL— 14 


PART  III 
GUARDIAN  AND  WARD 


GUARDIANS— SELECTION  AND  APPOINTMENT 
I.  Selection  and  Appointment  of  Guardians  by  the  Court  * 


In  re  TULLY. 

(Surrogate's  Court,  Kings  County,  New  York,  1907.    54  Misc.  Rep.  184,  105 

N.  Y.  Supp.  858.) 

Church,  S.  This  is  an  appHcation  by  Alice  Tully,  an  infant  over 
14  years  of  age,  for  the  appointment  of  a  guardian  of  her  person^and 
property,  and  also  an  application  on  behalf  of  her  sisters,  Angelina 
and  A'largaret  Tully,  infants  under  14  years  of  age,  for  the  appoint- 
ment of  guardians  of  their  persons  and  property.  The  infant  Alice, 
who  is  over  14  years  of  age,  nominates  as  her  guardian  a  maternal 
aunt;  and  it  is  suggested  that  the  surrogate  nominate  the  maternal 
uncle  of  the  infants  under  14  to  act  as  guardian  of  their  persons 
and  the  Hamilton  Trust  Company  as  guardian  of  their  property. 
The  mother  of  the  infants  is  dead;  but  the  father,  who  is  living, 
opposes  this  application. 

At  the  time  of  the  hearing,  I  indicated  it  as  my  opinion  that,  in 
the  case  of  the  infant  over  14,  the  function  of  the  court  was  limited 
to  the  approval  or  disapproval  of  the  choice  of  the  infant,  and  that 
I  had  no  power  to  make  a  nomination.  Counsel  for  the  father, 
however,  has  called  my  attention  to  the  decision  in  Ledwith  v.  Led- 
with,  1  Dem.  Sur.  154,  in  which,  in  passing  upon  the  sections  of  the 
Code  relative  to  guardianship,  the  court  holds  that,  where  an  infant 
has  a  parent  living,  it  does  not  have  arbitrary  power  to  nominate 
a  person  other  than  its  parent  to  act  as  guardian  of  its  person,  and, 
it  is  only  where  the  parent  is  not  a  responsible  person  that  the  court 
will  appoint  some  stranger  who  may  be  nominated  by  the  infant. 
In  this  connection  it  may  be  said  that,  while  the  court  has  a  liberal 
discretion  in  determining  who  should  be  appointed  a  guardian  of 

iFor  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
156-158. 

(210) 


SELECTION  AND  APPOINTMENT  OF  GUARDIANS  BY  THE  COURT        211 

an  infant,  it  should,  nevertheless,  respect  the  natural  claim  of  a 
father  to  act  as  guardian  of  his  own  child,  only  refusing  to  recog- 
nize such  right  where  the  father  is  not  a  fit  person  and  where  the 
interests  of  the  infant  require  the  appointment  of  some  one  else. 

In  this  case  the  most  that  is  shown  in  opposition  to  the  father's 
claim  to  appointment  is  that  there  were,  on  some  occasions,  quarrels 
between  the  parents  of  these  infants ;  and  it  is  also  declared  that 
he  has  been  once  or  twice  seen  in  an  intoxicated  condition.  It 
appears  that  the  father  lived  but  a  short  distance  from  the  ma- 
ternal grandparents  of  these  infants,  and  that  the  grandparents  were 
very  fond  of  the  children  and  contributed  largely  to  their  support. 
It  is  not  shown,  however,  that  the  father  neglected  to  support  them. 
On  the  contrary,  the  testimony  of  the  infant  Alice  shows  that, 
whenever  it  was  apparent  that  the  children  needed  anything,  he 
saw  that  they  received  it.  He  gave  them  spending  money,  placed 
the  oldest  child  in  a  private  school,  and  paid  for  her  tuition  for  a 
considerable  period  in  advance.  On  the  other  hand,  it  appears  that 
for  a  number  of  years  the  father  has  been  in  the  employ  of  the  city, 
and  has  done  steady  and  consistent  work,  which  has,  apparently, 
met  with  the  full  approval  of  his  superiors.  While  the  income  de- 
rived from  his  labor  is  not  so  great  as  that  of  the  grandparents 
of  these  infants,  yet  this  cannot  be  said  to  be  a  reason  for  de- 
priving him  of  his  children.  They  are  his  children,  and  he  is  en- 
titled to  bring  them  up  according  to  his  means  and  his  ability  to  do 
so,  and  he  is  not  to  be  deprived  of  this  privilege  unless  he  is  shown 
to  be  an  unstable  person  and  unmindful  of  his  parental  duty ;  but 
in  none  of  the  authorities  or  text-books  that  I  have  read  has  the 
fact  that  his  financial  ability  was  not  so  great  as  that  of  some  other 
persons  who  would  be  willing  to  take  the  infants  been  regarded  as  a 
sufificient  ground  to  compel  him  to  part  with  his  children. 

The  same  reasons  which  induce  me  to  nominate  the  father  to  act 
as  the  guardian  of  the  person  of  the  child  over  14  are  sufticient  to 
warrant  me  in  nominating  him  as  guardian  of  the  children  under  14. 
As  to  the  guardian  of  the  property  of  the  infants,  I  think  the  sug- 
gestion that  the  Hamilton  Trust  Company  be  appointed  a  wise  one. 
Let  decree  be  entered  accordingly. 

Decreed  accordingly. 


212  GUARDIANS — SELECTION   AND  APPOINTMENT 


II.  Jurisdiction  to  Appoint  Guardian ' 


In  re  BRADY. 
(Supreme  Court  of  Idaho,  1904.    10  Idaho,  3G6,  79  Pac.  75.) 

AiLSHiE,  J.^  This  case  arose  out  of  the  facts  and  transactions 
disclosed  in  the  case  of  Pine  v.  Callahan,  8  Idaho,  684,  71  Pac.  473. 
The  appellant,  Thomas  J.  Purcell,  having  been  named  by  the  pur- 
ported will  of  John  C.  Brady,  deceased,  as  the  testamentary  guard- 
ian of  the  minors,  Arva  and  Elmer  Brady,  applied  to  the  probate 
court  of  Kootenai  county,  and  was  on  the  20th  day  of  July,  1901, 
appointed  as  general  guardian  of  the  persons  and  estates  of  the 
said  minors.  At  the  time  of  the  death  of  John  C.  Brady,  these  two 
minor  children  were  living  and  residing  with  their  father  in  Koote- 
nai county.  Their  mother  had  died  some  two  years  previous.  The 
domicile  of  the  minors  was  not  changed  after  the  death  of  their 
father,  and  still  continued  to  be  in  Kootenai  county  at  the  time  of 
the  appointment  of  the  appellant  as  general  guardian. 

On  the  29th  day  of  July,  1901,  it  seems  that  Frank  Pine,  a  resi- 
dent of  the  state  of  Iowa,  who  is  named  in  this  proceeding  as  the 
guardian  of  the  minors,  was  appointed  by  the  district  court  of  Keo- 
kuk county,  Iowa,  as  guardian  of  the  persons  and  property  of  the 
minors,  Arva  and  Elmer  Brady.  It  appears  that  some  time  between 
the  20th  and  29th  days  of  July,  1901,  the  Iowa  guardian,  Frank 
Pine,  who  is  a  maternal  uncle  of  the  minors,  in  some  surreptitious 
way,  or  at  least  not  by  an  order  of  any  Idaho  court,  removed  the 
children  from  this  state  and  took  them  to  the  state  of  Iowa.  It  is 
£l^ear,that  Pine  was  neither  the  natural  nor  testamentary  g.iardian 
of  these  minors,  and  it  is  doubtful  if,  under  the  facts  in  this  case, 
he  had  any  power  or  authority  to  change  their  domicile,  although 
he  removed  them  physically  from  the  jurisdiction  of  the  domicile. 
Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  758.  It 
is  shown  by  the  record  that  the  maternal  and  paternal  grandpar- 
ents of  these  minors  were  all  living  at  the  time  of  these  transac- 
tions, but  it  nowhere  appears  that  any  of  the  grandparents  ever 
changed  the  domicile  of  the  minors  or  participated  therein. 

Soon  after  the  death  of  Brady,  John  C.  Callahan,  who  was  named 
as  executor  in  the  purported  will,  filed  the  document  in  the  probate 
court  of  Kootenai  county,  and  asked  to  have  the  same  admitted 
to  probate  as  the  last  will  and  testament  of  John  C.  Brady,  de- 

2For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  C3d  Ed.)  § 
159. 

vPart  of  the  opinion  is  omitted. 


JURISDICTION    TO    APPOINT   GUARDIAN  213 

ceased.  About  the  same  time  the  respondent,  Pine,  filed  a  petition 
asking  that  he  be  appointed  guardian  ad  litem  for  the  purpose  of 
contesting  the  validity  of  the  document  purporting  to  be  a  last  will 
and  testament.  This  petition  was  granted,  and  Pine  was  appointed 
as  guardian  ad  litem,  and  thereafter  successfully  prosecuted  the 
contest  of  the  will  to  a  final  judgment  in  this  court,  as  announced 
in  Pine  v.  Callahan,  supra. 

After  the  conclusion  of  the  litigation  over  the  probate  of  the  will, 
the  general  guardian,  Thomas  J.  Purcell,  who  had  been  appointed 
by  the  Idaho  court,  filed  his  petition  in  the  probate  court  of  Koote- 
nai county,  accompanied  by  an  itemized  statement  of  his  expenses 
and  disbursements  incurred  in  carrying  on  the  litigation,  and  prayed 
for  a  settlement  and  allowance  of  the  same.  To  this  petition  Pine 
filed  a  demurrer,  and  at  the  same  time  an  answer.  The  respondent 
interposed  two  grounds  of  demurrer:  "(1)  That  this  court  has  no 
jurisdiction  of  the  subject  of  the  said  petition.  (2)  That  the  peti- 
tion does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  and 
to  entitle  the  said  petitioner  to  the  relief  prayed  for  therein." 

This  demurrer  was  sustained  by  the  probate  court,  and  judgment 
was  thereupon  entered  dismissing  the  petition.  From  the  judgment 
and  order  so  entered  the  petitioner  appealed  to  the  district  court, 
where  the  matter  was  again  heard  upon  the  demurrer,  whereupon 
the  judgment  and  order  of  the  probate  court  was  affirmed.  From 
the  judgment  and  order  of  the  district  court  the  petitioner,  Thomas 
J.  Purcell,  appealed  to  this  court. 

The  substance  of  the  first  contention  made  by  the  respondent 
in  this  case  is  that,  since  the  minors  are  beyond  the  jurisdiction  of 
the  courts  of  Idaho,  and  are  under  the  care  and  protection  of  a 
guardian  appointed  by  the  court  of  another  state,  this  court  has 
lost  jurisdiction  of  the  subject-matter.  It  should  be  here  observed 
that  the  general  guardian  appointed  in  this  state  never  came  into 
possession  of  any  property  belonging  to  his  wards,  except  three  in- 
surance certificates  on  the  life  of  the  deceased  father  and  in  favor 
of  the  minors.  These  insurance  policies  have  been  in  the  posses- 
sion of  the  guardian  and  the  probate  court  of  Kootenai  county  ever 
since  the  appointment  of  appellant  as  general  guardian. 

We  dp  not  understand  how  the  unauthorized  removal  of  the 
wards  from  the  jurisdiction  of  the  domicile  to  another  state,  or 
the  appointment  of  a  guardian  by  a  court  of  a  foreign  jurisdiction, 
can  oust  the  courts  of  this  state  of  the  jurisdiction  which  they  had 
once  acquired.  There  is  no  doubt  but  that  when  the  wards  were 
domiciled  within  this  state,  and  their  only  property,  these  insur- 
ance policies,  were  within  the  state,  the  probate  court  had  juris- 
diction to  appoint  a  general  guardian,  and  to  direct  and  control  his 
conduct  as  such  guardian.  After  having  made  such  appointment, 
the  court  retained  jurisdiction  for  all  purposes  in  connection  there- 
with until  his  accounts  are  rendered  and  he  is  legally  discharged. 


214  GUARDIANS — SELECTION    AND   APPOINTMENT 

If  the  domicile  of  the  wards  should  be  legally  transferred  to  an- 
other state,  and  the  wards  retained  no  property  in  this  state  re- 
quiring the  care  and  attention  of  the  guardian,  such  facts  might, 
and  perhaps  would,  be  cause  for  settlement  of  the  account  of  the 
guardian  in  this  state  and  his  discharge.  But  that  question  does 
not  arise  in  this  case. 

It  is  argued,  however,  that  the  general  guardian  appointed  by 
the  probate  court  of  this  state,  who  was  also  named  as  testamentary 
guardian  in  the  purported  will,  was  without  authority  to  conduct 
the  litigation  over  the  probate  of  the  will,  and  to  incur  expenses  in 
connection  therewith.  We  are  not  in  accord  with  this  view  of  the 
case.  It  would  seem  to  us  that  where  the  will  appeared  to  be  legal 
and  fair  upon  its  face,  as  it  did  in  this  case,  and  by  the  terms  of 
such  will  the  testator  had  named  a  guardian  for  his  minor  children, 
it  was  within  the  scope  of  the  guardian's  power  and  authority  to 
pursue  reasonable  methods  for  the  proof  and  probate  of  that  instru- 
ment. Sections  5669  and  5673,  Rev.  St.  1887,  indicate  a  legislative 
intent  to  cover  such  cases  as  this.  He  was  recognized  and  treated 
as  general  guardian  by  all  the  courts  of  this  state  throughout  the 
entire  litigation  over  the  probate  of  the  will.  See  Pine  v.  Calla- 
han, supra. 

The  second  point  argued  by  respondent  is  that  the  petition  does 
not  allege  that  notice  was  given  of  the  application  for  appointment 
of  a  guardian,  as  required  by  section  5770,  Rev.  St.  1887,  and  that  it 
does  not  show  that  all  the  steps  were  taken,  as  required  by  statute, 
in  securing  the  appointment  of  appellant.  The  argument  under  this 
point  proceeds  upon  the  theory  that  the  probate  courts  of  this  state 
are  courts  of  inferior  and  limited  jurisdiction.  That  point  has  been 
decided  by  this  court  adversely  to  the  contention  of  respondent  in 
Clark  V.  Rossier,  10  Idaho,  348,  78  Pac.  358.  In  that  case  it  was 
said:  "A  court  of  general  jurisdiction  is  one  whose  judgment  is 
conclusive  until  modified  or  reversed  on  direct  attack,  and  which 
court  is  competent  to  decide  on  its  own  jurisdiction,  and  exercise 
it  to  a  final  judgment,  without  setting  forth  the  evidence.  The  rec- 
ord of  such  court  is  absolute  verity.  The  probate  court  of  this  state, 
as  far  as  its  jurisdiction  in  regard  to  probate  and  guardian  matters 
is  concerned,  is  such  a  court."     *     *     *     Judgment  reversed. 


EIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS  215 


RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS 
L  Maintenance  of  Ward — Use  of  Principal  of  Estate  * 


DUFFY  V.  WILLIAMS. 
(Supreme  Court  of  North  Carolina,  1903.    133  N.  C.  195,  45  S.  E.  548.) 

Proceedings  by  the  state,  on  relation  of  Rodolph  Duffy,  solicitor, 
against  W.  H.  Williams,  guardian.  From  a  judgment  for  defend- 
"ant,  plaintiff  appeals.  "^ 

Montgomery,  J.^  The  referee  found  as  a  fact  that  the  guardian, 
for  the  maintenance  of  his  wards,  had  expended,  without  an  order 
of  court,  a  greater  amount  than  the  income  of  their  estate,  but  that 
the  expenditures  were  reasonable  and  necessary,  and  that,  as  a 
matter  of  law,  he  should  be  allowed  in  his  settlement  with  the 
wards  such  amount  as  he  had  paid  out  of  the  capital  of  the  estate. 
The  affirming  of  these  findings  by  his  honor,  and  the  defendant's 
exception  thereto,  constitute  the  most  serious  question  raised  by 
the  appeal. 

The  defendant,  W.  H.  Williams,  Jr.,  in  1888,  was  appointed  and 
qualified  as  guardian  of  James  M.,  Florence  H.,  Annie  R.,  John 
E.,  and  Stella  Williams,  infant  children  of  J.  M.  Williams,  his  de- 
ceased brother.  The  evidence  tends  to  show  that  the  real  estate 
of  the  wards  was  worth  about  $14,000,  and  that  the  guardian  re- 
ceived about  $5,000  in  money  belonging  to  the  estate;  that  the 
Williams  family  was  a  most  respectable  one,  was  possessed  of  con- 
siderable property,  and  of  good  social  position  ;  that  the  oldest  child 
at  the  time  of  the  appointment  of  the  guardian  was  about  12  years 
of  age,  and  the  youngest  between  3  and  4;  that  through  about  10 
years  of  the  guardianship  the  wards  were  kept  in  the  home  of  their 
uncle,  the  guardian,  and  received  his  care  and  attention,  as  well  as 
that  of  his  wife,  and  were  at  the  close  of  his  guardianship  well 
reared,  of  good  manners,  and  fair  educational  advantages.  That 
part  of  the  corpus  of  the  estate  which  consisted  of  money — $5,000 
— had  been  used  by  the  guardian  in  those  expenditures. 

We  have  numerous  decisions  of  our  court,  from  that  of  Long  v. 
Norcom,  Z7  N.  C.  354,  down  to  and  including  that  of  Tharington 
V.  Tharington,  99  N.  C.  118,  5  S.  E.  414,  in  which  it  is  laid  down 

iFor  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
162-166. 
2  Part  of  the  opinion  is  omitted. 


216  RIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

as  a  general  rule  that  expenditures  by  a  guardian  of  a  larger  amount 
of  the  ward's  estate  than  the  income  arising  therefrom  for  the 
maintenance  and  education  of  the  wards  will  not  be  allowed  by  the 
courts,  and  that  the  courts  will  show  less  favor  to  the  guardian  who 
has  already  made  such  expenditures  of  his  own  head  before  he  has 
asked  the  authority  of  the  court  to  do  so.  But  it  has  never  been 
held  that  these  rules  are  so  hard  and  fast  as  to  admit  of  no  excep- 
tions. Acts  1762,  c.  62,  on  the  subject  of  guardian  and  ward,  in  its 
twenty-fifth  section  contains  a  reservation  in  the  court  of  equity 
of  their  former  jurisdiction  in  matters  and  things  relating  to  or- 
phans and  their  estates;  and  in  Long  v.  Norcom,  supra,  it  is  said: 
"The  county  court  may  not  be  authorized  under  the  act  of  1762  to 
do  more  than  apply  the  profits  of  one  year  to  the  deficit  of  a  pre- 
ceding year ;  but  the  court  of  equity  has  power — though  it  may  be 
seldom  willing  to  exercise  it — to  take  the  capital  itself,  and  apply 
it  for  maintenance,  either  future  or  past."  The  powers  which  the 
court  of  equity  then  had  and  exercised  are  now  conferred  upon  the 
clerk  of  the  superior  court  in  Code,  §§  1566-1568.  If  the  guardian, 
then,  in  the  present  case,  had  received  from  the  clerk  of  the  su- 
perior court  an  order  authorizing  and  directing  him  to  use  a  part 
of  the  capital  of  his  ward's  estate,  the  expenditure  would  have  been 
legal  and  proper. 

The  question,  then,  is,  as  it  was  in  Long  v.  Norcom,  supra, 
whether  the  guardian  shall  be  allowed  such  disbursements  as  were 
deemed  to  be  proper,  or  whether  they  shall  be  disallowed  upon  the 
single  ground  that  the  guardian  did  not  obtain  the  authority  of 
the  court  before  he  made  the  expenditures.  We  are  of  the  opinion 
that,  if  the  court  had  the  power  to  authorize  these  expenditures 
to  be  made — and  we  have  seen  that  the  court  of  equity  formerly 
had  such  power,  and  that  the  clerk  of  the  superior  court  now  is 
possessed  of  that  power — the  court  could  allow  the  guardian  the 
amount  of  such  past  expenditures.  The  referee  in  this  case  has 
found  from  the  evidence  that  the  amount  expended  by  the  guardian 
was  necessary  to  maintain  the  wards,  and  to  give  them  that  degree 
of  education  necessary  to  their  station  in  life.  The  wards  could 
not  be  sent  to  the  charitable  institutions  of  the  county  for  support, 
because  the  wards  owned  a  large  amount  of  property;  and  under 
such  circumstances  as  appear  in  the  case,  if  it  has  ever  been  held 
by  the  courts  of  this  state  that  a  ward  should  be  put  out  as  an  ap- 
prentice, then  we  think  the  rule  should  be  modified  and  altered. 
If  the  wards  then  should  not  have  been  put  out  as  apprentices,  and 
could  and  would  not  have  been  received  for  support  by  the  county 
as  paupers,  then,  the  income  of  the  estate  not  being  sufficient  to 
furnish  maintenance  for  the  wards,  the  guardian  had  no  choice  but 
to  use  a  reasonable  amount  of  the  capital  for  such  support  and 
maintenance;   and  the  report  of  the  referee  allowing  the  same  as 


MANAGEMENT   OF   ESTATE — GUARDIANSHIP  AS   A   TRUST         217 

reasonable  and  necessary  was  proper,  and  there  is  no  error  in  that 
part  of  the  judgment  of  the  court  below  in  affirming  that  finding  of 
the  referee.     *     *     ♦     Modified  and  affirmed.* 


II.  Change  of  Ward's  Domicile  by  Guardian  * 


LAMAR  V.  MICOU. 

(Supreme  Court  of  United  States,  1S84.    112  U.  S.  452,  5  Sup.  Ct  221,  28  L. 

Ed.  751.) 

See  post,  p.  230,  for  a  report  of  the  case. 


III.  Management  of  Estate — Guardianship  as  a  Trust  • 


BOOTH  V.  WILKINSON. 

(Supreme  Court  of  Wisconsin,  1891.    78  Wis.  652,  47  N.  W.  1128,  23  Am.  St 

Rep.  443.) 

Orton,  J.  The  appellants  are  the  heirs  at  law  of  William  Booth, 
deceased.  Two  of  them  are  of  age,  and  one  still  a  minor,  who  ap- 
pears by  guardian  ad  litem.  The  respondent  was  their  general 
guardian.  Their  mother,  Mrs.  Booth,  had  removed  to  Nebraska 
with  her  children,  and  had  there  been  appointed  guardian  of  the 
one  infant  heir,  and  the  moneys  belonging  to  the  heirs  had  been 
sent  to  her  there,  by  the  respondent,  when  received  by  him.  The 
respondent  had  sold  a  farm  belonging  to  their  estate,  as  guardian, 
to  one  Hitton,  for  about  $11,000,  on  notes  secured  by  mortgage,  all 
of  which,  and  interest  thereon,  had  been  paid  to  the  respondent, 
except  the  last  two,  amounting  to  $2,000,  and  the  money  had  been 
sent  to  Mrs.  Booth,  in  Nebraska.  The  respondent  had  been  noti- 
fied by  the  county  judge  to  make  final  settlement  of  his  guardian- 
ship on  the  12th  day  of  February,  1884,  and  he  therefore  called 

8  See,  also,  Abrams  v.  United  States  Fidelity  &  Guaranty  Co.,  post,  p.  222. 
and  Mauldin  v.  Southern  Shorthand  &  Business  University,  post,  p.  259.  And 
see  Pinnell  v.  Hinkle,  54  W.  Ya.  119,  46  S.  E.  171  (190.-]). 

4  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§  167. 

6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§§  168,  169. 


218  EIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

on  Mr.  Hitton  to  pay  the  last  two  notes,  and  Hitton  looked  around 
to  borrow  the  money,  and  said  that  he  could  get  it  of  one  Mr. 
Harmes.  Harmes  called  on  the  respondent  on  the  20th  or  22d  of 
January,  to  see  in  what  shape  he  wanted  the  money.  Harmes  said 
it  was  in  the  Platteville  Bank,  and  the  respondent  said:  "If  it  is 
in  the  bank,  it  would  be  best  to  leave  it  there ;"  and  that  he  would 
not  want  it  until  February  12th,  the  time  of  such  settlement,  and 
that  he  would  then  have  to  get  a  draft  to  send  to  Mrs.  Booth,  and 
it  would  be  right  there.  Harmes  then  got  a  certificate  of  deposit, 
and  turned  it  over  to  Hitton,  and  Hitton  delivered  it  to  the  re- 
spondent on  the  28th  day  of  January,  1884.  The  following  is  a 
copy  of  the  certificate :  "Platteville,  Wis.  January  24,  1884.  John 
Harmes  has  deposited  in  this  bank  two  thousand  dollars,  payable 
to  the  order  of  David  Wilkinson  in  current  funds,  on  the  return  of 
this  certificate  properly  indorsed.  [Signed]  O.  F.  Griswold,  Cas." 
The  respondent  held  the  certificate  for  the  purpose  of  having  it 
present  on  the  12th  or  13th  day  of  February,  the  day  of  final  set- 
tlement. On  the  8th  day  of  February  the  bank  broke,  and  the 
money  was  lost.  On  said  settlement  the  respondent  was  credited 
and  allowed  by  the  county  court  this  $2,000.  On  appeal  to  the 
circuit  court  said  judgment  was  approved  by  proper  findings  of 
fact  and  conclusions  of  law,  and  from  that  judgment  this  appeal 
is  taken. 

I  have  stated  the  facts  about  the  delivery  of  the  certificate  ac- 
cording to  the  testimony  of  the  respondent.  This  statement  of 
the  facts  relates  only  to  this  certificate  of  deposit,  as  this  is  the 
only  subject  of  contention  on  this  appeal.  I  have  stripped  the  case 
of  everything  not  material  to  the  only  question  on  this  appeal. 
Nothing  omitted  would  affect  the  question.  It  does  not  appear 
that  the  respondent  directed  how  the  certificate  of  deposit  should 
be  drawn,  but  he  knew  when  he  received  it  how  it  was  drawn, 
and  accepted  it  in  its  present  form.  He  knew  that  the  deposit 
stood  on  the  books  of  the  bank  to  his  own  personal  credit.  It  could 
not  be  known  by  the  books  of  the  bank  that  this  was  trust  money, 
and  not  his  own.  The  rule  may  be  technical  and  arbitrary  to  some 
extent,  but  it  is  based  upon  the  soundest  principles  of  business 
economy  and  integrity,  and  approved  by  the  highest  courts  of  this 
country  and  of  England  with  such  a  unanimity  of  judgment  as  to 
make  it  an  established  principle  of  law,  that,  if  a  guardian  deposits 
the  money  in  his  hands  belonging  to  the  heirs  in  a  bank  in  his  own 
name,  and  to  his  own  credit,  without  any  ear-marks  or  indicia  to 
distinguish  it  as  the  money  of  the  heirs,  or  of  the  estate  or  trust 
funds,  and  the  bank  fails,  it  will  be  held  to  be  his  own  personal  loss, 
and  not  that  of  the  heirs.  No  circumstances  will  justify  it  if  such 
is  the  character  of  the  deposit.  It  is  not  a  question  of  good  faith 
or  of  integrity — it  is  a  question  of  naked  fact — which  determmes 
its  legal  character. 


MANAGEMENT  OF   ESTATE— GUARDIANSHIP   AS   A   TRUST         219 

The  reason  of  the  rule  is  obvious.     The  following  extract  from 
the  opinion  of  Judge  Porter  in  McAllister  v.  Com.,  30  Pa.  536,  ex- 
presses, once  for  all,  the  rule,  and  some  of  the  reasons  of  it:   "If 
he  [the  trustee]  undertakes  to  make  a  deposit  in  a  banking  insti- 
tution, the  entry  must  go  down  on  the  books  of  the  institution,  in 
such  terms  as  not  to  be  misunderstood,  that  they  are  the  funds  of 
the  specific  trust  to  which  they  belong.    He  cannot  so  enter  them 
as  to  call  them  his  own  to-day,  if  they  are  good,  and  to-morrow, 
if  bad,  ascribe  them  to  the  estate,  or  shift  them  in  an  emergency 
from  one  estate  to  another,  or  by  the  deposit  secure  the  discount 
of  his  own  note,  and  have  the  deposit  snatched  at  by  the  bank, 
if  the  note  be  not  paid,  or  attached  by  a  creditor  as  the  depositor's 
individual  property.     *     *     *     No  matter  what  he  intends  to  do, 
or  what  the  cashier  or  clerk  may  think  he  is  doing,  the  deposit 
must  wear  the  impress  of  the  trust,  or  he  cannot,  when  brought  to 
account,  call  it  trust  property."     This  was  the  exact  condition  of 
this  fund,  and  all  the  reasons  of  the  rule  are  applicable  to  it  as  the 
personal  and  individual  deposit  of  the  respondent.    The  rule  is  in- 
flexible, and  there  is  not  in  this  case  a  single  circumstance  which 
makes  the  rule  inapplicable  to  it. 

This  is  all  that  need  be  said  in  this  case,  for  this  court  has  sanc- 
tioned the  rule  in  a  recent  case,  where  the  depositor  informed  the 
teller  of  the  bank,  who  gave  the  certificate  of  deposit,  that  they 
were  trust  funds,  and  did  not  belong  to  him.  In  Williams  v.  Wil- 
liams, 55  Wis.  300,  12  N.  W.  465,  13  N.  W.  274,  42  Am.  Rep.  708, 
Mr.  Justice  Cassoday  marshaled  and  passed  in  review  the  leading 
authorities  of  this  country  and  of  England,  and  sanctioned  the  rule 
in  a  case  that  rules  this  in  all  essential  particulars.  The  loss  in 
this  case  was  that  of  the  respondent,  and  not  that  of  the  heirs,  or 
their  guardian  in  Nebraska ;  and  therefore  the  respondent  should 
be  charged  with  this  $2,000  in  the  settlement  of  his  guardianship. 
The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  re- 
manded, with  direction  for  further  proceedings  in  accordance  with 
this  opinion. 

In  re  TANNER'S  ESTATE. 

(Supreme  Court  of  Pennsylvania,  1907.     218  Pa.  361,  67  Atl.  646.) 

In  the  matter  of  the  estate  of  Stella  A.  Curtis  Tanner,  minor. 
From  a  decree  of  the  orphans'  court,  setting  aside  guardian's  sale, 
Bryant  E.  Sherman  and  others  appeal. 

Bouton,  P.  J.,  filed  the  following  opinion  in  the  court  below: 
"From  the  record  it  appears  that  Wallace  E.  Curtis  died  at  Brad- 
ford, in  this  county,  on  August  22,  1888,  intestate,  leaving  a  widow, 
Dillie  Curtis,   since  intermarried  with  Jacob    Dollmetsch,  and  a 
daughter,  Stella  A.  Curtis,  all  of  whom  reside  in  this  county ;   that 


220  RIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

on  or  about  August  27,  1888,  letters  of  administration  were  issued 
to  the  said  Dillie  Curtis,  and  that  on  November  9,  1903,  Bryant  E. 
Sherman  was  appointed  guardian  of  said  minor  daughter,  Stella 
A.  Curtis;  that  the  said  Wallace  E.  Curtis  was,  prior  to  his  de- 
cease, seised  and  possessed  of  a  certain  tract  of  land  situated  in  this 
county,  known  as  the  'Mantz  farm,'  containing  130  acres  and  93 
perches;  that  the  right  to  take  the  petroleum,  rock  oil,  and  gas 
in,  underlying,  or  appurtenant  to  the  said  land  was  reserved  by  the 
grantors  of  the  said  Wallace  E.  Curtis  for  the  term  of  20  years  from 
August  26,  1885,  there  being  at  that  time  upon  the  said  land  19 
wells  producing  oil.  It  further  appears  that  by  sundry  conveyances 
the  said  Bryant  E.  Sherman,  Charles  F.  Schwab,  and  D.  E.  Hafifey 
became  the  owners  of  the  said  wells  and  oil  rights  so  reserved,  and 
were  in  possession  and  operating  the  same  at  the  time  the  petition 
for  sale  was  presented  in  this  case.  It  further  appears  from  the 
petition  that  the  said  minor,  Stella  A.  Curtis,  would  become  the 
owner  of  the  said  oil  right  so  reserved  by  the  grantor  of  Wallace 

E.  Curtis  on  August  26,  1905,  subject  to  the  dower  right  of  her 
mother. 

"On  December  14,  1903,  the  said  Bryant  E.  Sherman,  guardian, 
presented  his  petition  to  this  court  praying  for  an  order  author- 
izing private  sale  to  Charles  F.  Schwab  of  the  interest  of  his  said 
ward,  Stella  A.  Curtis,  in  and  to  the  petroleum  or  rock  oil  and  gas 
in  the  said  tract  of  land  for  the  sum  of  $1,666.67;  and  on  the  same 
day  the  court  authorized  said  private  sale,  the  purchase  price  to 
be  paid  in  cash.  Following  this  order  deed  was  made  and  executed 
by  the  guardian  to  the  said  Charles  F.  Schwab,  purchaser,  which 
deed  was  duly  acknowledged   and  delivered  to  the  said  Charles 

F.  Schwab.  On  September  14,  1904,  the  said  Stella  A.  Curtis, 
then  intermarried  with  Edward  Tanner,  by  her  next  friend,  the 
said  Edward  Tanner,  presented  her  petition  to  this  court,  praying 
that  the  sale  to  Charles  F.  Schwab  be  set  aside  and  the  decree  of 
confirmation  be  revoked,  and  for  a  decree  directing  a  reconvey- 
ance of  the  said  oil  right  and  restitution  of  the  purchase  money. 
Upon  this  petition  rule  to  show  cause  was  granted,  to  which  rule 
the  said  Bryant  E.  Sherman,  Charles  F.  Schwab,  and  D,  E.  Haffey 
each  filed  separate  answers. 

"The  petition  avers  that  the  sale  was  made  and  consummated 
under  an  arrangement  between  the  said  D.  E.  Haffey,  Charles 
F.  Schwab,  and  Bryant  E.  Sherman,  in  which  it  was  agreed  that  a 
sale  thereof  should  be  made  for  the  sole  purpose  of  obtaining  a  title 
to  said  oil  right  in  the  said  Charles  F.  Schwab,  and  that  he  should 
thereafter  make  a  transfer  of  the  portion  of  the  same  to  the  said 
D.  E.  Haffey  and  Bryant  E.  Sherman  according  to  the  respective 
interests  in  said  land,  and  that  said  agreement  had  been  consum- 
mated and  carried  out,  and  said  parties  are  now  the  owners  thereof 
and  in  possession  of  the  same.    These  allegations  are  not  denied  by 


MANAGEMENT   OF    ESTATE — GUARDIANSHIP    AS   A   TRUST  221 

the  respondents,  Bryant  E.  Sherman,  Charles  F.  Schwab,  and  D. 
E.  Haffey,  or  either  of  them.  From  the  evidence  it  appears  that 
the  said  Stella  A.  Curtis  was  19  years  of  age  on  the  19th  day  of 
March,  1906,  that  the  rights  to  the  oil  and  gas  which  were  owned 
by  Sherman,  Schwab,  and  Haffey  were  about  to  expire,  and  they, 
being  desirous  of  continuing  the  operations  for  oil  and  gas  and  of 
becoming  the  owners  thereof,  talked  the  matter  over  with  the 
widow  in  the  office  of  Attorney  Burdick,  and  it  was  there  under- 
stood and  arranged  that  Bryant  E.  Sherman  was  to  be  appointed 
guardian,  was  to  make  the  application  to  the  court  to  sell  the  in- 
terest of  his  ward  to  Charles  F.  Schwab,  and  that  Schwab  was  to 
become  the  purchaser,  not  for  himself  alone,  but  for  the  joint  in- 
terest of  himself,  Bryant  E.  Sherman,  and  D.  E.  Haffey,  and  was 
to  convey  to  Sherman  and  Hafifey  an  interest  in  the  same  corre- 
sponding in  quantity  to  the  interest  which  they  held  prior  to  the 
sale.     *     *     * 

"The  petition  for  the  sale  of  the  land  is  entirely  silent  as  to  the 
purpose  of  the  purchaser  to  convey  an  interest  to  the  guardian  and 
to  D.  E.  Haffey  under  a  previous  arrangement  so  to  do,  and  no 
information  of  this  intent  was  given  to  the  court.  True  it  is  that 
the  answers  of  the  respondents  deny  any  fraud  in  the  transaction 
or  any  inadequacy  of  price,  and  it  may  be  that  the  price  paid  was 
all  the  interest  of  the  minor  was  reasonably  worth.  Be  that  as  it 
may  the  fact  that  the  guardian  without  leave  of  court  made  the 
sale  with  the  understanding  that  he  was  to  have  an  interest  in  the 
property  reconveyed  to  him  puts  him  in  the  same  position  as  a 
guardian  purchasing  at  his  own  sale,  and  amounts  to  a  fraud  in 
law,  and  gives  the  ward  the  right  to  avoid  the  sale  at  her  election. 
As  we  understand  the  law,  where  a  trustee  purchases  at  his  own 
sale  the  interest  of  his  cestui  que  trust,  the  sale  is  avoidable  at  the 
election  of  the  cestui  que  trust  without  proof  of  actual  fraud.  The 
rule  that  a  party  will  not  be  elected  to  purchase  and  hold  property 
for  his  own  use  and  benefit  to  which  he  stands  in  a  fiduciary  re- 
lation, if  contested  by  the  cestui  que  trust,  is  inflexible,  and  with- 
out regard  to  the  consideration  paid  or  the  honesty  of  the  intent. 
Chorpenning's  Appeal,  32  Pa.  315,  72  Am.  Dec.  789;  Beeson  v. 
Beeson,  9  Pa.  279.  No  person  acting  in  a  fiduciary  character  can 
purchase  at  his  own  sale,  directly  or  indirectly,  or  acquire  by  pur- 
chase, any  interest  in  the  trust  estate,  without  the  consent  of  the 
beneficiary  or  others  interested  therein,  or  of  the  court  having  juris- 
diction of  the  trust.  Brittain's  Estate,  28  Pa.  Super.  Ct,  144.  See, 
also,  Shuman's  Appeal,  27  Pa.  64;  Hannum's  Appeal,  2  Penny. 
103.  Or  unless,  if  selling  under  a  power,  he  is  by  its  terms  per- 
mitted to  purchase.  Brittain's  Estate,  supra.  Under  the  facts  in 
this  case  the  sale  must  be  set  aside."  " 

6  The  statement  of  facts  is  abridged. 


222  BIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

Per  Curiam.  The  fact,  alleged  in  the  petition  and  not  denied 
in  the  answer,  that  the  sale  of  the  minor's  interest  in  land  was  made 
by  her  guardian  for  the  purpose  of  securing  for  himself  and  oth- 
ers the  title  thereto,  was  sufficient  ground  for  setting  aside  the 
sale  without  proof  of  actual  fraud  or  inadequacy  of  price.  That 
the  intent  was  honest  and  a  full  consideration  was  paid  does  not 
prevent  the  application  of  the  rule  that  a  person  assuming  a  fidu- 
ciary relation  towards  another  in  regard  to  property  is  disabled 
from  using  his  power  for  his  private  benefit  and  that  he  cannot 
directly  or  indirectly  become  a  purchaser  at  his  own  sale.  It  is  a 
rule  founded  on  public  policy,  to  prevent  a  conflict  between  in- 
terest and  duty.  It  is  said  in  the  notes  to  Fox  v.  Mackreath,  1 
Lead.  Cases  in  Equity,  239:  "It  matters  not  that  there  was  no 
fraud  contemplated  and  no  injury  done.  The  rule  is  not  intended 
to  be  remedial  of  actual  wrong,  but  preventive  of  the  possibility 
of  it.  It  is  one  of  those  processes,  derived  from  the  system  of 
trusts,  by  which  a  court  of  chancery  turns  parties  away  from 
wrong,  and  from  the  power  of  doing  wrong,  by  making  their  act 
instantly  inure  in  equity  to  the  rightful  purpose.  The  cases  are 
uniform  in  declaring  that  it  matters  not  how  innocent  and  bona 
fide,  and  free  from  the  suggestion  of  fault,  the  transaction  may  be." 

The  judgment  is  affirmed,  at  the  cost  of  the  appellants. 


IV.  Same — Collection  and  Protection  of  Property  ' 


ABRAMS  V.  UNITED  STATES  FIDELITY  &  GUAR- 
ANTY CO. 

(Supreme  Court  of  Wisconsin,  1906.     127  Wis.  579,  106  N.  W.  1091,  5  L.  R. 
A.  [N.  S.]  575,  115  Am.  St  Rep.  1055.) 

Action  by  Robert  Abrams  as  guardian  of  Bessie  Avery  and 
others  against  the  United  States  Fidelity  &  Guaranty  Company. 
From  a  judgment  in  favor  of  plaintiff,  defendant  appeals.  This  is 
a  proceeding  to  settle  the  final  account  of  Sarah  Perry  as  the  guard- 
ian of  the  estate  of  certain  minors.  The  appellant  was  a  surety 
upon  the  guardian's  bond,  and  was  made  a  party  to  the  proceed- 
ings in  the  county  court,  and  appealed  from  the  order  of  that  court 
settling  the  guardian's  account  to  the  circuit  court,  where  the 
matter  was  again  tried  and  the  account  settled,  and  from  that 
judgment  the  surety  appeals  to  this  court. 

It  appeared  that  Herbert  D.  Avery,  and  his  wife,  Ida,  resided 

7  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
I  172. 


COLLECTION  AND  PROTECTION  OF  PROPERTY        223 

in  Colorado,  where  Ida  died  December  4,  1899,  leaving  four  small 
children,  Bessie,  Perry,  Alois,  and  Marie,  the  minors  in  question, 
and  about  December  20,   1899,  Sarah  Perry,  a  sister  of  the  de- 
ceased, went  to  Colorado  and  brought  the  children  to  her  home 
in  Winr.ebago  county,  in  this  state,  to  live  with  her,  under  an 
arrangement  with  the  father  that  the  father  was  to  pay  what  he 
could  for  their  keeping;    that  the  father  was  killed  in  a  railroad 
accident  on  the  Colorado  &  Southern  Railway,  October  18,  1900, 
leaving  the  four  children  as   his  only  heirs   at  law;    that  Sarah 
Perry  was  appointed  guardian  of  the  persons  and  estate  of  the 
minors  by  the  county  court  of  Winnebago  county  December  4, 
1900,  and  gave  a  guardian's  bond  in  the  sum  of  $8,000,  with  the 
appellant  as  surety;  that  the  guardian  at  once  employed  one  Her- 
bert L.  Sweet,  then  an  attorney  of  good  standing  in  Oshkosh,  as 
her  attorney;   that  at  the  time  of  Avery's  death  he  had  two  poli- 
cies of  life  insurance,  one  in  the  Independent  Order  of  Foresters, 
of  $3,000,  and  one  in  the  Ancient  Order  of  United  Workmen,  of 
$2,000,  both  being  in  favor  of  his  heirs;    that  he  also  left  some 
property  in  Colorado,  which  was  afterwards  administered   upon, 
the  net  amount  realized  being  $482.98;    that  there  was  also  an 
unsettled  claim  against  the  railroad  company  for  the  death  of  said 
Herbert;  that  the  mother,  Ida,  left  40  acres  of  land  in  Winnebago 
county,  title  to  which  passed  to  the  minors;   that  Aliss  Perry,  as 
guardian,  put  the  various  claims  into  Sweet's  hands  for  collection, 
and  that  under  authority  from  the  county  court  of  Winnebago 
county  a  settlement  was  arranged  by  Sweet  with  the  railroad  com- 
pany of  the  death  claim  on  the  basis  of  the  payment  of  $1,250. 
Miss  Perry,  as  guardian,  signed  a  receipt  and  release  for  this  claim, 
and  Sweet  sent  the  same  to  the  railroad  company,  and  a  check 
for  $1,250  was  returned  to  Sweet. 

There  was  no  direct  evidence  as  to  whether  this  check  was  pay- 
able to  the  guardian  or  to  Sweet.  The  court  found,  however,  that 
it  was  payable  to  Miss  Perry  and  was  indorsed  by  her  and  turned 
over  to  Sweet.  The  claim  against  the  Independent  Order  of  For- 
esters was  also  collected  by  Sweet,  the  draft  being  sent  to  him, 
payable  to  the  order  of  Miss  Perry,  who  indorsed  the  draft  and 
signed  the  receipt  and  returned  both  draft  and  receipt  to  Sweet. 
The  guardian  testified,  and  the  court  found,  that  she  left  these 
drafts  in  the  hands  of  Mr.  Sweet  for  investment,  and  that  the  same 
course  was  pursued  with  the  sum  of  $482.98  collected  from  the  ad- 
ministration of  Avery's  estate  in  Colorado.  It  appeared  without 
dispute  that  Sweet  immediately  deposited  the  drafts  in  each  case 
to  his  own  credit  in  the  bank.  The  sum  of  $2,000  from  the  Ancient 
Order  of  United  Workmen  was  paid  to  Miss  Perry  in  cash,  and  she 
kept  $1,000  thereof,  and  took  the  other  $1,000  to  Sweet  and  left 
it  with  him  to  invest.  Sweet  returned  to  Miss  Perry  $200  out  of 
the  $1,250  received  from  the  railroad  company,  but  did  not  return 


224  RIGHTS,  DUTIES,  AND   LIABILITIES  OP    GUARDIANS 

any  other  sums.  He  claimed  that  he  had  invested  the  money 
in  real  estate  mortgages,  and  to  deceive  Miss  Perry  made  some 
payments  to  her  of  sums  which  he  claimed  to  have  received  as  in- 
terest on  the  investment,  but  he  never  turned  over  to  her  any  se- 
curities, and,  in  fact,  used  the  moneys  himself  as  soon  as  he  re- 
ceived them,  and  left  the  city  in  the  spring  or  summer  of  1902, 
leaving  many  thousand  dollars  of  liabilities,  including  his  liability 
to  the  guardian.  Miss  Perry  made  no  effort  at  any  time  by  suit  to 
obtain  the  moneys  or  the  securities  from  Sweet.  She  made  no 
charge  at  any  time  against  the  infants  for  care,  lodging,  or  food, 
but  kept  accurate  account  of  the  moneys  expended  for  clothing, 
schoolbooks,  and  other  incidentals.  She  testified  that  she  never 
intended  to  charge  them  for  care  or  lodging,  and  the  court  found 
that  she  stood  in  the  relation  of  parent  to  them. 

In  the  account,  as  settled  by  the  circuit  court,  the  guardian  was 
charged  with  the  sums  received  from  the  insurance  companies, 
the  railroad  company,  and  from  the  estate  in  Colorado,  with  inter- 
est on  such  sums  at  6  per  cent.  *  *  *  ghe  was  credited  with 
the  sums  which  she  paid  for  taxes  and  repairs  upon  the  real  es- 
tate, also  with  the  sums  paid  for  clothing  and  incidentals  paid 
for  the  minors,  and  with  the  premium  paid  for  her  bond.  She  was 
also  allowed  $50  as  a  reasonable  amount  for  legal  services,  and 
$1,450  for  food  furnished  to  the  minors  from  December  20,  1899, 
to  February  20,  1904,  less  $330  received  from  the  father.  She  re- 
signed as  guardian  of  the  estate  of  the  minors  February  20,  1904, 
and  the  respondent  Abrams  was  appointed  to  that  trust,  and  this 
accounting  was  thereafter  had. 

WiNSLOW,  J.®  The  guardian  was  a  trustee  of  the  funds  of  her 
wards.  It  was  her  duty,  on  receiving  such  funds,  to  keep  them 
for  her  wards,  and  to  invest  so  much  of  them  as  was  not  required 
for  immediate  and  necessary  use,  as  soon  as  she  could  do  so  with 
reasonable  diligence.  She  could  employ  an  attorney  to  collect 
them,  and,  if  she  exercised  reasonable  care  and  prudence  in  the 
choice  of  an  attorney,  doubtless  she  would  be  protected  from  losses 
occurring  by  the  fraud  or  negligence  of  the  attorney  in  the  course 
of  his  duty  as  collecting  agent,  but  when  she  had  received  the 
funds  by  draft  or  in  cash  the  functions  of  the  attorney  for  collec- 
tion ended,  and  if  she  then  placed  the  fund  in  his  hands  to  invest 
he  became  simply  an  agent  to  whom  she  had  attempted  to  delegate 
her  duties  as  trustee.  Mr.  Lewin,  in  his  work  on  Trusts  (volume 
1,  p.  252),  says:  "Trustees  who  take  on  themselves  the  manage- 
ment of  property  for  the  benefit  of  others  have  no  right  to  shift 
their  duty  on  other  persons ;  and,  if  they  do  so,  they  remain  sub- 
ject to  the  responsibility  towards  their  cestuis  que  trustent  for 
whom  they  have  undertaken  the  duty.    If  a  trustee,  therefore,  con- 

»  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


COLLECTION  AND  PROTECTION  OF  PROPERTY         225 

fide  the  application  of  the  trust  fund  to  the  care  of  another,  whether 
a  stranger,  or  his  own  attorney  or  solicitor,  or  even  co-trustee  or 
co-executor,  he  will  be  held  personally  responsible  for  any  loss 
that  may  result." 

This  principle  is  firmly  established.  It  does  not  mean  that  a 
trustee  may  not  employ  a  broker  or  attorney  to  do  those  things 
which  in  the  ordinary  course  of  business  such  agents  would  be  em- 
ployed to  do,  but  simply  that  he  cannot  delegate  to  others  the  do- 
ing of  those  things  which  he  is  in  duty  bound  to  do  himself.  The 
collection  of  claims  against  others  involving  actions  at  law  or  ne- 
gotiations for  settlement  may  well  be  intrusted  to  an  attorney. 
The  guardian  has  not  undertaken  to  act  as  an  attorney,  but  the 
care  and  investment  of  the  funds  which  reach  his  hands  is  one  of 
the  very  things  which  the  guardian  has  agreed  to  attend  to,  and 
if  he  delegates  this  duty  to  another,  whether  he  be  an  attorney 
or  a  layman,  he  makes  such  other  his  personal  agent  and  is  re- 
sponsible for  his  acts.  A  guardian's  duty,  by  the  terms  of  his  ap- 
pointment, is  "to  dispose  of  and  manage"  his  ward's  estate  accord- 
ing to  law,  and  such  is  the  tenor  of  his  bond.  He  may  employ  at- 
torneys or  agents  according  to  the  usual  course  of  business  to  re- 
duce the  estate  to  possession  and  to  protect  it,  but  when  once  in 
his  hands  his  personal  duty  to  dispose  of  and  manage  it  begins, 
and  this  duty  is  not  to  be  delegated. 

These  considerations  really  dispose  of  the  most  serious  question 
raised  by  the  appellant  in  this  case,  namely,  the  question  whether 
the  guardian  should  be  charged  with  the  sums  received  from  the 
railroad  company,  the  Order  of  Foresters,  and  the  administrator 
of  Avery's  estate  in  Colorado.  The  claim  is  that  these  sums  never, 
in  fact,  came  to  the  hands  of  the  guardian,  but  were  squandered  by 
the  attorney  in  the  process  of  collection.  The  court  found,  upon 
sufficient  evidence,  that  these  amounts  were  represented  by  bank 
drafts  or  checks  payable  to  the  order  of  the  guardian,  which  came 
to  the  guardian  through  the  attorney,  and  that  the  guardian  in- 
dorsed them  and  handed  them  back  to  the  attorney,  to  be  invested 
by  him  for  her  as  guardian.  It  must  be  held  that,  when  the  draft 
came  to  her  hands,  she  came  into  possession  of  so  much  of  her 
ward's  estate.  Her  personal  duty  to  manage  that  estate  then  be- 
gan.    *     *     * 

It  is  contended  that  the  court  should  have  allowed  the  guard- 
ian a  reasonable  sum  for  lodging  of  the  children  and  for  her  per- 
sonal services  in  their  care.  The  fact  was  that  she  voluntarily 
stood  in  loco  parentis  to  these  children,  and  never  intended  to 
charge  them  anything  for  lodging  or  services.  Under  these  cir- 
cumstances neither  the  guardian  nor  the  surety  has  any  right 
to  such  credit.  Hutson  v.  Jenson,  110  Wis.  26,  85  N.  W.  689. 
*  *  *  Judgment  affirmed. 
COOLEY  P.&  D.Rel.— 15 


226  EIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 


ROUSH  V.  GRIFFITH. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1909.     65  W.  Va.  752,  65  S.  H. 

168.) 

Suit  by  Margaret  V.  Roush  and  others  against  D.  S.  Griffith  and 
E.  B.  Faulkner,  as  administrators  of  the  estate  of  Moses  S.  Gran- 
tham, deceased.  There  was  a  decree  in  favor  of  plaintiff,  charging 
the  estate  with  $3,070,  and  the  defendants  appeal. 

PoFFENBARGER,  J.9  *  *  *  'phe  decree  charges  the  estate,  on 
account  of  Grantham's  guardianship  for  the  plaintiff,  commencing 
on  the  16th  day  of  June,  1854.  Mrs.  Roush  was  then  a  little 
child,  less  than  two  years  old,  the  daughter  of  William  T.  Sei- 
bert,  who  died  some  time  prior  to  the  date  aforesaid.  Grantham 
qualified  as  her  guardian,  and  gave  bond  as  such  in  the  penalty 
of  $3,200,  with  M.  K.  Seibert  and  B.  Cushwa  as  sureties.  The 
only  evidence  tending  to  show  the  amount  of  money  that  went 
into  his  hands  as  guardian  is  the  settlement  made  by  Barnett 
Cushwa,  administrator  of  William  T.  Seibert,  before  Seaman  Ger- 
ard, commissioner  of  the  county  court  of  Berkeley  county,  on  the 
12th  day  of  August,  1854,  showing  that  he  had  received  on  ac- 
count of  said  estate  $4,333.10,  and,  after  having  made  certain  dis- 
bursements on  account  of  indebtedness,  had  paid  to  the  widow 
$700  and  to  Grantham,  as  guardian,  on  the  12th  day  of  July,  1854, 
$500,  and  on  August  9,  1854,  $900,  and  then  had  in  his  hands  a 
balance  of  $290.12  due  the  estate.  The  court  in  its  decree  aforesaid 
charged  the  estate  of  Grantham  with  the  $500  and  $900  items  and 
two-thirds  of  the  $290.12  item.  There  is  no  evidence  of  Gran- 
tham's ever  having  paid  anything  to  his  ward,  but  in  her  bill  she 
admitted  payments  of  $600  at  one  time,  $100  at  another,  and  $50 
at  another.  The  administrator  and  heirs  in  their  answers  say  they 
are  unable  to  find  among  the  papers  of  Grantham  any  books  or 
memoranda  of  any  kind  showing  either  receipts  or  disbursements 
on  account  of  said  estate.  After  attaining  her  majority,  Margaret 
V.  Seibert,  only  heir  at  law  of  William  T.  Seibert,  and  ward  of 
Moses  S.  Grantham,  intermarried  with  Charles  Roush,  and  in  Oc- 
tober, 1886,  she  and  her  husband  brought  this  suit.     *     *     * 

Insufficiency  of  the  report  of  the  settlement  made  by  Cushwa, 
administrator,  to  prove  payment  to  the  guardian  by  the  entries 
or  statements  therein  to  the  effect  that  he  had  made  certain  pay- 
ments to  him,  is  relied  upon  as  conclusively  overthrowing  the  de- 
cree; but  this  contention  ignores  liability  on  the  part  of  the  guard- 
ian for  money  or  property  which  he  might  have  reduced  into  his 
possession,  by  action  or  otherwise,  even  though  the  nature  of  the 
claim  was  such  as  to  require  the  action  to  be  brought  in  the  name 
of  the  ward  by  his  next  friend,  in  addition  to  money  or  property 

•  Part  of  the  opinion  is  omitted. 


COLLECTION  AND  PROTECTION  OF  PROPERTY         227 

actually  received  by  him,  subject  to  his  right  to  show  that  money 
or  estate  not  received  was  lost  otherwise  than  by  his  negligence 
or  lack  of  prudent  and  diligent  effort  to  obtain  and  preserve  the 
same.  A  guardian  is  liable,  not  only  for  what  has  actually  come 
into  his  hands,  but  also  for  what,  by  the  exercise  of  reasonable  dil- 
igence and  prudent  action,  he  might  have  obtained,  but  which  he 
suffered  to  be  lost  by  his  negligence.  The  statute  (section  7,  c. 
82,  Code  1899  [Code  1906,  §  3220])  requires  him,  on  the  expiration 
of  his  trust,  to  "deliver  and  pay  all  the  estate  and  money  in  his 
hands,  or  with  which  he  is  chargeable,  to  those  entitled  thereto." 
In  the  opinion  of  Prof.  Minor  this  statute  imposes  upon  the  guard- 
ian the  duty  to  collect,  or  cause  to  be  collected,  all  solvent  debts 
due  the  ward,  as  appears  from  the  following  statement  in  1  Min. 
Ins.  476,  made  after  quoting  the  statute:  "He  must,  therefore, 
account  for  all  of  the  ward's  estate,  including  all  evidence  of  claims 
that  did  come,  or,  with  due  diligence,  might  have  come,  into  his 
possession." 

The  statute  is  no  doubt  merely  declaratory  of  law  well  estab- 
lished otherwise  than  by  statute;  for,  in  Brown  v.  Brown's  Adm'x, 
2  Wash.  (Va.)  151,  the  court  said:  "Hence  it  appears  that  this 
money  either  was  received  by  Thomas  Browm,  the  guardian,  or  he 
was  guilty  of  gross  neglect  of  duty,  either  of  which  would  be  a 
proper  ground  for  charging  him  therewith."  Lincoln's  Adm'r  v. 
Stern,  23  Grat.  816,  impliedly  asserts  liability  of  the  guardian  for 
negligent  loss  of  the  ward's  estate,  never  reduced  to  his  possession, 
but  recoverable  in  the  name  of  the  ward.  A  decree,  based  on  this 
principle,  was  reversed,  merely  because  there  had  been  no  inquiry 
into  the  condition  of  the  claims,  or  as  to  whether  they  had  been 
collected,  were  collectible,  or  lost,  if  at  all,  "through  the  default 
or  neglect  of  the  guardian."  This  basis  of  liability  on  the  part  of 
a  guardian  seems  to  be  generally  recognized  by  the  courts.  "Any 
funds  which  by  the  exercise  of  due  diligence  he  (the  guardian) 
would  have  received,  as,  for  instance,  sums  due  to  the  ward  which 
he  negligently  failed  to  collect,  or  income  which  was  lost  by  his 
failure  properly  to  invest  the  funds  or  rent  the  real  estate,  will 
also  be  charged  to  him."  15  Am.  &  Eng.  Ency.  Law,  92.  This 
text  is  well  sustained  by  numerous  decisions  cited  in  support  there- 
of. A  guardian  must  collect  from  his  predecessor,  an  executor  or 
an  administrator  from  whom  an  estate  is  due  to  his  ward,  Burke 
V.  Turner,  85  N.  C.  500;  Bescher  v.  State,  63  Ind.  302;  State  v. 
Greensdale,  106  Ind.  364,  6  N.  E.  926,  55  Am.  Rep.  753 ;  Keenan's 
Estate,  6  Kulp  (Pa.)  67;    Horton  v.  Horton,  39  N.  C.  54. 

It  appears  here  beyond  successful  contradiction  that  there  waj, 
due  from  the  administrator  of  the  estate  of  the  father  of  the  ward 
all  the  money  that  has  been  decreed  against  the  estate  of  the  guard 
ian.     The  settlement  established  that   fact  as  between  the  ward 
and  the  administrator  of  her  father's  estate,  subject  to  the  right  to 


228  RIGHTS,  DUTIES,  AND   LIABILITIES   OF    GUARDIANS 

surcharge  and  falsify.  Campbell's  Adm'r  v.  White,  14  W.  Va.  122; 
Van  Winkle  v.  Blackford,  23  W.  Va.  573,  11  S.  E.  26;  Seabright 
V.  Scab  right,  28  W.  Va.  412;  Leach  v.  Buckner,  19  W.  Va.  36; 
Bearing  v.  Selvey,  50  W.  Va.  4,  40  S.  E.  478.  As  the  adminis- 
trator in  that  settlement  charged  himself  with  an  estate  amply 
sufficient  to  cover  the  amount  of  the  decree,  and  had  given  a  bond 
for  the  faithful  discharge  and  performance  of  the  trust,  sufficient  in 
amount,  and  with  security  approved  by  the  court,  it  must  be  as- 
sumed prima  facie  that  the  ward's  claim  against  him  could  have 
been  collected  by  the  exercise  of  due  diligence. 

In  giving  the  report  of  the  settlement  this  effect,  we  do  not  make 
it  evidence  of  payment  by  the  administrator  to  the  guardian,  but 
only  to  the  fact  that  there  existed  a  valid  and  solvent  claim  in 
favor  of  the  ward.  This  fact  so  established,  the  law  imposed  upon 
the  guardian  a  duty  respecting  the  claim.  His  office  and  trust  re- 
quired him  to  take  the  custody  and  care  of  his  ward's  estate  and 
preserve  the  same,  and,  after  the  lapse  of  a  reasonable  time,  it  pre- 
sumes performance  of  this  duty  on  his  part,  in  the  absence  of  a 
contrary  showing  made  by  him.  Thus,  when  a  debt  is  returned  in 
an  inventory  of  an  executor,  not  noted  as  being  either  worthless 
or  doubtful,  it  will  be  presumed,  when  the  executor  settles  his 
accounts,  after  ample  time  has  elapsed  for  him  to  have  collected 
such  debt,  that  he  has  in  fact  collected  it  in  full,  and  he  will  be 
charged  with  it  as  having  been  collected  when  it  ought  to  have 
been  collected,  unless  he  relieves  himself  by  showing  that  it  has 
not  been  collected,  and  why  collection  thereof  has  not  been  made. 
Anderson  v.  Piercy,  20  W.  Va.  282,  325;  Estill  v.  McClintic's 
Adm'r,  11  W.  Va.  416;  Crouch  v.  Davis,  23  Grat.  (Va.)  100;  Dil- 
Hard  v.  Tomlinson,  1  Munf.  (Va.)  183 ;  Graham  v.  Davidson,  22  N. 
C.  155;  Hickman  v.  Kamp's  Adm'r,  3  Bush  (Ky.)  205;  Lawson  v. 
Copeland,  2  Bro.  156. 

Prima  facie  an  executor  or  other  fiduciary  is  chargeable  with  all 
the  assets  and  must  account  for  them,  but  he  may  account  by 
showing  a  loss  which  could  not  have  been  prevented  by  the  exer- 
cise of  due  diligence  and  vigilance.  Van  Winkle  v.  Blackford, 
54  W.  Va.  621,  654,  46  S.  E.  589. 

There  seems  to  be  an  apparent  conflict  in  our  decisions  respect- 
ing the  proposition  above  stated,  since  many  of  them  say  a  fidu- 
ciary should  not  be  charged  with  the  amount  of  a  note  or  other 
debt  until  he  has  collected  the  same,  or  it  has  been  made  to  ap- 
pear that  it  has  been  converted  to  his  own  use  or  lost  by  his  neg- 
ligence. Hooper  v.  Hooper,  32  W.  Va.  541,  9  S.  E.  937;  Holt  v. 
Holt,  46  W.  Va.  397,  35  S.  E.  19.  It  seems  to  me,  however,  that 
this  conflict  is  only  apparent,  and  not  real.  The  decisions  in  which 
the  latter  proposition  is  asserted  and  applied  dealt  with  settle- 
ments made  by  fiduciaries  for  the  purpose  of  founding  thereon  de- 
crees against  them,  and  not  their  liability  in  general.     Of  course. 


COLLECTION  AND  PROTECTION  OF  PROPERTY         229 

it  would  be  improper  to  decree  against  an  administrator,  executor 
or  guardian  the  amount  of  a  valid  debt  remaining  in  his  hands 
uncollected,  since  the  debt  is  still  enforceable  against  the  debtor, 
and  the  estate  for  which  the  fiduciary  has  acted  is  not  prejudiced 
otherwise  than  by  delay,  which  is  fully  compensated  by  interest 
on  the  debt.  Nor  would  it  be  proper  to  charge  him  personally 
with  interest  on  an  uncollected  debt  which  is  itself  bearing  inter- 
est in  favor  of  the  estate  he  represents. 

But,  when  the  question  of  ultimate  and  final  liability  arises, 
under  the  rule  of  law  prescribing  the  whole  duty  of  a  fiduciary,  it 
is  to  be  determined  by  that  rule,  and  not  by  minor,  subsidiary  rules 
which  have  to  do  only  with  the  form  of  the  settlement,  or  the 
amount  of  the  money  to  be  decreed,  or  the  time  from  which  in- 
terest shall  be  charged.  The  distinction  is  very  important,  for  upon 
it  depends  the  question  whether  the  burden  of  proof,  to  show  that 
the  loss  is  due  to  the  negligence  of  the  fiduciary,  rests  upon  him 
or  upon  the  cestui  que  trust.  The  general  principle  of  law,  hold- 
ing personal  representatives  and  guardians  to  the  duty  of  exercis- 
ing care  and  diligence  to  collect  and  conserve  the  estate,  necessa- 
rily casts  upon  them  the  burden  of  showing  why  claims,  once  es- 
tablished and  shown  to  have  existed,  should  not  be  charged  to 
them;  it  clearly  appearing  that  they  have  not  been  collected  and 
have  ceased  to  be  collectible. 

As  has  been  already  asserted,  the  evidence  fully  establishes  the 
existence  of  an  estate  which  it  was  the  duty  of  the  guardian  to 
collect  and  preserve.  He  qualified  about  the  time  the  adminis- 
trator ascertained  the  amount  due  the  ward,  and  presumably  that 
he  might  take  charge  of  some  estate  of  hers,  and  she  appears  to 
have  had  no  other  estate  than  the  sum  due  her  from  the  adminis- 
trator— a  circumstances  strongly  importing  that  he  had  knowledge 
of  this  particular  estate.  A  period  of  50  years  has  elapsed  since  the 
duty  devolved  upon  him.  If  the  money  has  not  been  collected  by 
him,  payment  thereof  would  now  be  presumed  by  reason  of  the 
long  lapse  of  time,  in  the  absence  of  a  contrary  showing.  An  ef- 
fort to  assert  it  against  the  estate  of  Seibert,  or  that  of  Cushwa, 
Seibert's  administrator,  would  be  presumptively  futile  for  that  rea- 
son. Therefore  it  may  be  safely  said  that,  if  the  guardian  did  not 
collect  it,  he  suffered  it  to  be  lost  by  his  failure  to  proceed  for  the 
collection  thereof  when  he  should  have  done  so,  and  his  estate  is 
for  that  reason,  if  for  no  other,  clearly  liable  therefor.  *  *  ♦ 
Decree  affirmed. 


230  EIGHTS,  DUTIES,  AND  LIABILITIES  OF    GUARDIANS 


V.  Same — Investments*** 


LAMAR  V.  MICOU. 

(Supreme  Court  of  United  States,  1884.     112  U.  S.  452,  5  Sup.  Ct.  221,  28 

L.  Ed.  751.) 

On  November  23,  1850,  W.  W.  Sims,  of  Savannah,  Georgia,  died 
leaving  a  widow  and  two  infant  daughters,  Ann  C.  and  Martha 
M.  Sims.  In  1853  the  widow  married  R.  M.  Abercrombie,  of 
Clifton,  Richmond  county,  N.  Y.  On  December  11,  1855,  on  the 
petition  of  Mrs.  Abercrombie,  G.  B.  Lamar,  an  uncle  of  Mrs.  Sims, 
then  living  in  Brooklyn,  N.  Y.,  was  appointed  guardian  of  the  in- 
fants. As  such  guardian  Lamar  received  $5,166,  belonging  to  each 
of  his  wards,  and  invested  part  of  it  in  stock  of  the  Bank  of  the 
Republic  in  New  York  and  part  of  it  in  the  Bank  of  Commerce  of 
Savannah.     These  banks  were  paying  good  dividends. 

The  children  resided  with  Mr.  and  Mrs.  Abercrombie  in  Clifton, 
N.  Y.,  and  subsequently  in  Hartford,  Connecticut;  the  guardian 
paying  their  board  until  the  death  of  Mrs.  Abercrombie  in  1859. 
They  were  then  by  the  guardian  taken  to  Augusta,  Georgia,  and 
placed  in  the  care  of  their  paternal  grandmother  and  their  aunt. 
The  aunt  subsequently  married  Benj.  H.  Micou,  of  Montgomery, 
Alabama,  and  the  children  and  their  grandmother  thereafter  lived 
with  Mr.  and  Mrs.  Micou  in  Montgomery.  From  1855  to  1859  La- 
mar resided  partly  in  Georgia  and  partly  in  New  York.  In  the 
spring  of  1861  he  had  a  temporary  residence  in  the  city  of  New 
York,  and  upon  the  breaking  out  of  the  war  of  the  rebellion,  and 
after  removing  all  his  own  property,  left  New  York,  and  passed 
through  the  lines  to  Savannah,  and  there  resided,  sympathizing 
with  the  rebellion,  and  doing  what  he  could  to  accomplish  its  suc- 
cess, until  January,  1865,  and  continued  to  have  his  residence  in 
Savannah  until  1872  or  1873,  when  he  went  to  New  York  again, 
and  afterwards  lived  there  until  his  death  in  October,  1874. 

At  the  time  of  Lamar's  appointment  as  guardian,  10  shares  in 
the  stock  of  the  Mechanics'  Bank  of  Augusta,  in  the  state  of  Geor- 
gia, which  had  belonged  to  William  W.  Sims  in  his  life-time,  stood 
on  the  books  of  the  bank  in  the  name  of  Mrs.  Abercrombie  as  his 
administratrix,  of  which  one-third  belonged  to  her  as  his  widow,, 
and  one-third  to  each  of  the  infants.  In  January,  1856,  the  bank 
refused  a  request  of  Lamar  to  transfer  one-third  of  that  stock  to 
him  as  guardian  of  each  infant,  but  afterwards  paid  to  him  as 
guardian,  from  time  to  time,  two-thirds  of  the  dividends  during 

10  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel,  (3d  Ed.) 
§§  173,  174. 


INVESTMENTS  231 

the  life  of  Mrs.  Abercrombie,  and  all  the  dividends  after  her  death 
until  1865.  During  the  period  last  named,  he  also  received  as 
guardian  the  dividends  on  some  other  bank  stock  in  Savannah, 
which  Mrs.  Abercrombie  owned,  and  to  which,  on  her  death,  her 
husband  became  entitled.  In  the  winter  of  1861-62,  Lamar,  fear- 
ing that  the  stock  in  the  Bank  of  the  Republic  at  New  York,  held 
by  him  as  guardian,  would  be  confiscated  by  the  United  States, 
had  it  sold  by  a  friend  in  New  York;  the  proceeds  of  the  sale, 
which  were  about  20  per  cent,  less  than  the  par  value  of  the  stock, 
invested  at  New  York  in  guarantied  bonds  of  the  cities  of  New 
Orleans,  Memphis,  and  Mobile,  and  of  the  East  Tennessee  &  Geor- 
gia Railroad  Company;  and  those  bonds  deposited  in  a  bank  in 
Canada.  Lamar  from  time  to  time  invested  the  property  of  his 
wards,  that  was  within  the  so-called  Confederate  States,  in  what- 
ever seemed  to  him  to  be  the  most  secure  and  safe — some  in  Con- 
federate States  bonds,  some  in  the  bonds  of  the  individual  states 
which  composed  the  confederacy,  and  some  in  bonds  of  cities,  and 
of  railroad  corporations,  and  stock  of  banks  within  those  states. 
On  the  money  of  his  wards,  accruing  from  dividends  on  bank  stock, 
and  remaining  in  his  hands,  he  charged  himself  with  interest  until 
the  summer  of  1862,  when,  with  the  advice  and  aid  of  Mr.  Micou, 
he  invested  $7,000  of  such  money  in  bonds  of  the  Confederate 
States  and  of  the  state  of  Alabama;  and  in  1863,  with  the  like  ad- 
vice and  aid,  sold  the  Alabama  bonds  for  more  than  he  had  paid 
for  them,  and  invested  the  proceeds  also  in  Confederate  States 
bonds ;  charged  his  wards  with  the  money  paid,  and  credited  them 
with  the  bonds ;  and  placed  the  bonds  in  the  hands  of  their  grand- 
mother, who  gave  him  a  receipt  for  them  and  held  them  till  the 
end  of  the  rebellion,  when  they,  as  well  as  the  stock  in  the  banks 
at  Savannah,  became  worthless. 

Martha  M,  Sims  died  on  November  2,  1864,  at  the  age  of  15 
years,  unmarried  and  intestate,  leaving  her  sister  Ann  C.  Sims  her 
next  of  kin.  This  action  was  begun  by  Ann  C.  Sims  as  administra- 
trix of  Martha  M.  Sims,  in  1875,  against  the  defendant,  as  executor 
of  the  will  of  G.  B.  Lamar.  On  the  death  of  Ann  C.  Sims  in  1878, 
the  suit  was  revived  by  Mrs.  Micou,  as  administratrix  de  bonis 
non  of  the  estate  of  Martha  M.  Sims.  There  was  a  decree  for 
plaintiff  for  $18,700,  and  defendant  appealed. 

Gray,  J,^^  *  *  *  'pj^g  general  rule  is  everywhere  recognized 
that  a  guardian  or  trustee,  when  investing  property  in  his  hands, 
is  bound  to  act  honestly  and  faithfully,  and  to  exercise  sound  dis- 
cretion, such  as  men  of  ordinary  prudence  and  intelligence  use 
in  their  own  afifairs.  In  some  jurisdictions  no  attempt  has  been 
made  to  establish  a  more  definite  rule ;  in  others,  the  discretion  has 

1,1  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


232  RIGHTS,  DUTIES,  AND   LIABILITIES   OF    GUARDIANS 

been  confined,  by  the  legislature  or  the  courts,  within  strict  lim- 
its.    *     *     * 

In  this  country  there  has  been  a  diversity  in  the  laws  and  us- 
ages of  the  several  states  upon  the  subject  of  trust  investments. 
In  New  York,  under  Chancellor  Kent,  the  rule  seems  to  have 
been  quite  undefined.     See  Smith  v.  Smith,  4  Johns.  Ch.  281,  285; 
Thompson  v.  Brown,  4  Johns.  Ch.  619,  628,  629.     *     *     *     And  in 
Brown  v.  Campbell,  Hopk.  Ch.  233,  where  an  executor  in  good  faith 
made  an  investment,  considered  at  the  time  to  be  advantageous, 
of  the  amount  of  two  promissory  notes,  due  to  his  testator  from 
one  manufacturing  corporation,  in  the  stock  of  another  manufac- 
turing corporation,  which  afterwards  became  insolvent.  Chancellor 
Sanford  held  that  there  was  no  reason  to  charge  him  with  the  loss. 
But  by  the  later  decisions  in  that  state  investments  in  bank  or  rail- 
road stock  have  been  held  to  be  at  the  risk  of  the  trustee,  and  it 
has  been  intimated  that  the  only  investments  that  a  trustee  can 
safely  make  without  an  express  order  of  court  are  in  government 
or  real  estate  securities.     King  v.  Talbot,  40  N.  Y.  76,  affirming 
S.   C.  50  Barb.  453;    Ackerman  v.  Emott,  4  Barb.  626;    Mills  v. 
Hoffman,  26  Hun,  594;   2  Kent,  Comm.  416,  note  b.     So  the  de- 
cisions in  New  Jersey  and  Pennsylvania  tend  to  disallow  invest- 
ments in  the  stock  of  banks  or  other  business  corporations  or  oth- 
erwise than  in  the  public  funds  or  in  mortgages  of  real  estate. 
Gray  v.  Fox,  1  N.  J.  Eq.  259,  268,  22  Am.  Dec.  508;    Halsted  v. 
Meeker,  18  N.  J.  Eq.  136;    Lathrop  v.  Smalley,  23  N.  J.  Eq.  192; 
Worrell's  Appeal,  9  Pa.  508,  and  2Z  Pa.  44;    Hemphill's  Appeal, 
18  Pa.  303;    Ihmsen's  Appeal,  43  Pa.  431.     And  the  New  York 
and  Pennsylvania  courts  have  shown  a  strong  disinclination  to  per- 
mit investments  in  real  estate  or  securities  out  of  their  jurisdiction. 
Ormiston  v.  Olcott,  84  N.  Y.  339;   Rush's  Estate,  12  Pa.  375,  378. 
In  New  England,  and  in  the  southern  states,  the  rule  has  been 
less  strict.    In  Massachusetts,  by  a  usage  of  more  than  half  a  cen- 
tury, approved  by  a  uniform  course  of  judicial  decision,  it   has 
come  to  be  regarded  as  too  firmly  settled  to  be  changed,  except 
by  the  legislature,  that  all  that  can  be  required  of  a  trustee  to  in- 
vest is  that  he  shall  conduct  himself  faithfully  and  exercise  a  sound 
discretion,  such  as  men  of  prudence  and  intelligence  exercise  in  the 
permanent  disposition  of  their  own  funds,  having  regard,  not  only 
to  the  probable  income,  but  also  to  the  probable  safety,  of  the 
capital;    and  that  a  guardian  or  trustee  is  not  precluded  from  in- 
vesting in  the  stock  of  banking,  insurance,  manufacturing,  or  rail- 
road corporations  within  or  without  the  state.     Harvard  College 
V.  Amory,  9  Pick.  446,  461;    Lovell  v.  Minot,  20  Pick.  116,  119, 
32  Am.  Dec.  206;  Kinmonth  v.  Brigham,  5  Allen,  270,  277;    Clark 
V.  Garfield,  8  Allen,  427;   Brown  v.  French,  125  Mass.  410,  28  Am. 
Rep.  254;    Bowker  v.  Pierce,  130  Mass.  262.     In  New  Hampshire 
and  in  Vermont,  investments,  honestly  and  prudently  made,  in 


INVESTMENTS  233 

securities  of  any  kind  that  produce  income,  appear  to  be  allowed. 
Knowlton  v.  Bradley,  17  N.  H.  458,  43  Am.  Dec.  609;  Kimball  v. 
Reding,  31  N.  H.  352,  374,  64  Am.  Dec.  333;  French  v.  Currier, 
47  N.  H.  88,  99;    Barney  v.  Parsons,  54  Vt.  623,  41  Am.  Rep.  858. 

In  Maryland,  good  bank  stock,  as  well  as  government  securities 
and  mortgages  on  real  estate,  has  always  been  considered  a  proper 
investment.  Hammond  v.  Hammond,  2  Bland,  306,  413;  Gray 
V.  Lynch,  8  Gill,  403 ;  Murray  v.  Feinour,  2  Md.  Ch.  418.  So,  in 
Mississippi,  investment  in  bank  stock  is  allowed.  Smyth  v.  Burns, 
25  Miss.  422. 

In  South  Carolina,  before  the  war,  no  more  definite  rule  appears 
to  have  been  laid  down  than  that  guardians  and  trustees  must  man- 
age the  funds  in  their  hands  as  prudent  men  manage  their  own 
aflfairs.  Boggs  v.  Adger,  4  Rich.  Eq.  408,  411;  Spear  v.  Spear,  9 
Rich.  Eq.  184,  201 ;    Snelling  v.  McCreary,  14  Rich.  Eq.  291,  300. 

In  Georgia  the  English  rule  was  never  adopted;  a  statute  of 
1845,  which  authorized  executors,  administrators,  guardians  and 
trustees,  holding  any  trust  funds,  to  invest  them  in  securities  of  the 
state,  was  not  considered  compulsory;  and  before  January  1,  1863 
(when  that  statute  was  amended  by  adding  a  provision  that  any 
other  investment  of  trust  funds  must  be  made  under  a  judicial  or- 
der, or  else  be  at  the  risk  of  the  trustee),  those  who  lent  the  fund 
at  interest,  on  what  was  at  the  time  considered  by  prudent  men  to 
be  good  security,  were  not  held  liable  for  a  loss  without  their  fault. 
Cobb,  Dig.  333;  Code  1861,  §  2308;  Brown  v.  Wright,  39  Ga.  96; 
Moses  v.  Moses,  50  Ga.  9,  33. 

In  Alabama  the  supreme  court  in  Bryant  v.  Craig,  12  Ala.  354, 
359,  having  intimated  that  a  guardian  could  not  safely  invest  upon 
either  real  or  personal  security  without  an  order  of  court,  the  leg- 
islature, from  1852,  authorized  guardians  and  trustees  to  invest  on 
bond  and  mortgage,  or  on  good  personal  security,  with  no  other 
limit  than  fidelity  and  prudence  might  require.  Code  1852,  §  2024; 
Code  1867,  §  2426;  Foscue  v.  Lyon,  55  Ala.  440,  452. 

The  rules  of  investment  varying  so  much  in  the  different  states, 
it  becomes  necessary  to  consider  by  what  law  the  management  and 
investment  of  the  ward's  property  should  be  governed.  As  a  gen- 
eral rule  (with  some  exceptions  not  material  to  the  consideration 
of  this  case)  the  law  of  the  domicile  governs  the  status  of  a  person, 
and  the  disposition  and  management  of  his  movable  property. 
The  domicile  of  an  infant  is  universally  held  to  be  the  fittest  place 
for  the  appointment  of  a  guardian  of  his  person  and  estate;  al- 
though, for  the  protection  of  either,  a  guardian  may  be  appointed 
in  any  state  where  the  person  or  any  property  of  an  infant  may 
be  found.  On  the  continent  of  Europe,  the  guardian  appointed  in 
the  state  of  the  domicile  of  the  ward  is  generally  recognized  as 
entitled  to  the  control  and  dominion  of  the  ward  and  his  movable 
property  everywhere,  and  guardians  specially  appointed  in  other 


234  RIGHTS,  DUTIES,  AND   LIABILITIES  OP    GUARDIANS 

States  are  responsible  to  the  principar guardian.  By  the  law  of 
England  and  of  this  country,  a  guardian  appointed  by  the  courts 
of  one  state  has  no  authority  over  the  ward's  person  or  property 
in  another  state,  except  so  far  as  allowed  by  the  comity  of  that 
state,  as  expressed  through  its  legislature  or  its  courts;  but  the 
tendency  of  modern  statutes  and  decisions  is  to  defer  to  the  law 
of  the  domicile,  and  to  support  the  authority  of  the  guardian  ap- 
pointed there.  Hoyt  v.  Sprague,  103  U.  S.  613,  631,  26  L.  Ed.  585, 
and  authorities  cited;  Morrell  v.  Dickey,  1  Johns.  Ch.  (N.  Y.)  153; 
Woodworth  v.  Spring,  4  Allen  (Mass.)  321 ;  Milliken  v.  Pratt,  125 
Mass.  374,  Z77 ,  378,  28  Am.  Rep.  241 ;  Leonard  v.  Putnam,  51  N. 
H.  247,  12  Am.  Rep.  106;  Com.  v.  Rhoads,  Z7  Pa.  60;  Sims  v. 
Renwick,  25  Ga.  58;  Dicey,  Dom.  172-176;  Westl.  Int.  Law  (2d 
Ed.)  48-50;   Whart.  Confl.  Laws  (2d  Ed.)  §§  259-268. 

An  infant  cannot  change  his  own  domicile.  As  infants  have 
the  domicile  of  their  father,  he  may  change  their  domicile  by 
changing  his  own;  and  after  his  death  the  mother,  while  she  re- 
mains a  widow,  may  likewise,  by  changing  her  domicile,  change 
the  domicile  of  the  infants;  the  domicile  of  the  children,  in  either 
case,  following  the  independent  domicile  of  their  parent.  Ken- 
nedy V.  Ryall,  67  N.  Y.  379;  Potinger  v.  Wightman,  3  Mer.  67; 
Dedham  v.  Natick,  16  Mass.  135 ;  Dicey,  Dom.  97-99.  But  when 
the  widow,  by  marrying  again,  acquires  the  domicile  of  a  second 
husband,  she  does  not,  by  taking  her  children  by  the  first  hus- 
band to  live  with  her  there,  make  the  domicile  which  she  derives 
from  the  second  husband  their  domicile;  and  they  retain  the  dom- 
icile which  they  had,  before  her  second  marriage,  acquired  from 
her  or  from  their  father.  Cumner  v.  Milton,  3  Salk.  259;  S.  C. 
Holt,  578 ;  Freetown  v.  Taunton,  16  Mass.  52 ;  School  Directors  v. 
James,  2  Watts  &  S.  (Pa.)  568,  37  Am.  Dec.  525 ;  Johnson  v.  Cope- 
land,  35  Ala.  521;  Brown  v.  Lynch,  2  Bradf.  Sur.  (N.  Y.)  214; 
Mears  v.  Sinclair,  1  W.  Va.  185 ;  Pot.  Introduction  Generale  aux 
Coutumes,  No.  19;  1  Burge,  Col.  Law,  39;  4  Phillim.  Int.  Law 
(2d  Ed.)  §  97. 

The  preference  due  to  the  law  of  the  ward's  domicile,  and  the 
importance  of  a  uniform  administration  of  his  whole  estate,  re- 
quire that,  as  a  general  rule,  the  management  and  investment  of 
his  property  should  be  governed  by  the  law  of  the  state  of  his  dom- 
icile, especially  when  he  actually  resides  there,  rather  than  by  the 
law  of  any  state  in  which  a  guardian  may  have  been  appointed  or 
may  have  received  some  property  of  the  ward.  If  the  duties  of  the 
guardian  were  to  be  exclusively  regulated  by  the  law  of  the  state 
of  his  appointment,  it  would  follow  that  in  any  case  in  which  the 
temporary  residence  of  the  ward  was  changed  from  state  to  state, 
from  considerations  of  health,  education,  pleasure,  or  convenience, 
and  guardians  were  appointed  in  each  state,  the  guardians  appointed 
in  the  different  states,  even  if  the  same  persons,  might  be  held  to 


INVESTMENTS  235 

diverse  rules  of  accounting  for  different  parts  of  the  ward's  prop- 
erty. The  form  of  acounting,  so  far  as  concerns  the  remedy  only, 
must,  indeed,  be  according  to  the  law  of  the  court  in  which  re- 
lief is  sought;  but  the  general  rule  by  which  the  guardian  is  to 
be  held  responsible  for  the  investment  of  the  ward's  property  is  the 
law  of  the  place  of  the  domicile  of  the  ward.  Bar.  Int.  Law,  §  106 
(Gillespie's  translation)  p.  438;   Whart.  Confl.  Laws,  §  259. 

It  may  be  suggested  that  this  would  enable  the  guardian,  by 
changing  the  domicile  of  his  ward,  to  choose  for  himself  the  law 
by  which  he  should  account.  Not  so.  The  father,  and  after  his 
death  the  widowed  mother,  being  the  natural  guardian,  and  the 
person  from  whom  the  ward  derives  his  domicile,  may  change  that 
domicile.  But  the  ward  does  not  derive  a  domicile  from  any  other 
than  a  natural  guardian.  A  testamentary  guardian  nominated  by 
the  father  may  have  the  same  control  of  the  ward's  domicile  that 
the  father  had.  Wood  v.  Wood,  5  Paige  (N.  Y.)  596,  605,  28  Am. 
Dec.  451.  And  any  guardian,  appointed  in  the  state  of  the  domicile 
of  the  ward,  has  been  generally  held  to  have  the  power  of  changing 
the  ward's  domicile  from  one  county  to  another  within  the  same 
state  and  under  the  same  law.  Cutts  v.  Haskins,  9  Mass.  543; 
Holyoke  v.  Haskins,  5  Pick.  20,  16  Am.  Dec.  372;  Kirkland  v. 
Whately,  4  Allen  (Mass.)  462;  Anderson  v.  Anderson,  42  Vt.  350, 
1  Am.  Rep.  334;  Ex  parte  Bartlett,  4  Bradf.  Sur.  (N.  Y.)  221; 
The  Queen  v.  Whitby,  L.  R.  5  O.  B.  325,  331.  But  it  is  very 
doubtful,  to  say  the  least,  whether  even  a  guardian  appointed  in 
the  state  of  the  domicile  of  the  ward  (not  being  the  natural  guard- 
ian or  a  testamentary  guardian)  can  remove  the  ward's  domicile  be- 
yond the  limits  of  the  state  in  which  the  guardian  is  appointed,  and 
to  which  his  legal  authority  is  confined.  Douglas  v.  Douglas,  L.  R. 
12  Eq.  617,  625;  Daniel  v.  Hill,  52  Ala.  430;  Story,  Confl.  Laws,  § 
506,  note;  Dicey,  Dom.  100,  132.  And  it  is  quite  clear  that  a 
guardian  appointed  in  a  state  in  which  the  ward  is  temporarily 
residing,  cannot  change  the  ward's  permanent  domicile  from  one 
state  to  another.  The  case  of  such  a  guardian  differs  from  that  of 
an  executor  of,  or  a  trustee  under,  a  will.  In  the  one  case,  the 
title  in  the  property  is  in  the  executor  or  the  trustee ;  in  the  other, 
the  title  in  the  property  is  in  the  ward,  and  the  guardian  has  only 
the  custody  and  management  of  it,  with  power  to  change  its  in- 
vestment. The  executor  or  trustee  is  appointed  at  the  domicile 
of  the  testator;  the  guardian  is  most  fitly  appointed  at  the  domi- 
cile of  the  ward,  and  may  be  appointed  in  any  state  in  which  the 
person  or  any  property  of  the  ward  is  found.  The  general  rule 
which  governs  the  administration  of  the  property  in  the  one  case 
may  be  the  law  of  the  domicile  of  the  testator;  in  the  other  case, 
it  is  the  law  of  the  domicile  of  the  ward. 

As  the  law  of  the  domicile  of  the  ward  has  no  extraterritorial 
effect,  except  by  the  comity  of  the   state  where  the  property  is 


236  RIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

situated,  or  where  the  guardian  is  appointed,  it  cannot,  of  course, 
prevail  against  a  statute  of  the  state  in  which  the  question  is 
presented  for  adjudication,  expressly  applicable  to  the  estate  of 
a  ward  domiciled  elsewhere.  Hoyt  v.  Sprague,  103  U.  S.  613,  26 
L.  Ed.  585.  Cases  may  also  arise  with  facts  so  peculiar  or  so  com- 
plicated as  to  modify  the  degree  of  influence  that  the  court  in 
which  the  guardian  is  called  to  account  may  allow  to  the  law  of 
the  domicile  of  the  ward,  consistently  with  doing  justice  to  the 
parties  before  it.  And  a  guardian,  who  had  in  good  faith  con- 
formed to  the  law  of  the  state  in  which  he  was  appointed,  might, 
perhaps,  be  excused  for  not  having  complied  with  stricter  rules  pre- 
vailing at  the  domicile  of  the  ward.  But  in  a  case  in  which  the 
domicile  of  the  ward  has  always  been  in  a  state  whose  law  leaves 
much  to  the  discretion  of  the  guardian  in  the  matter  of  invest- 
ments, and  he  has  faithfully  and  prudently  exercised  that  discre- 
tion with  a  view  to  the  pecuniary  interests  of  the  ward,  it  would  be 
inconsistent  with  the  principles  of  equity  to  charge  him  with  the 
amount  of  the  moneys  invested,  merely  because  he  has  not  com- 
plied with  the  more  rigid  rules  adopted  by  the  courts  of  the  state 
in  which  he  was  appointed. 

The  domicile  of  William  W.  Sims,  during  his  life  and  at  the 
time  of  his  death  in  1850,  was  in  Georgia.  This  domicile  continued 
to  be  the  domicile  of  his  widow  and  of  their  infant  children  until 
they  acquired  new  ones.  In  1853  the  widow,  by  marrying  the  Rev. 
Mr.  Abercrombie,  acquired  his  domicile.  But  she  did  not,  by  taking 
the  infants  to  the  home,  at  first  in  New  York  and  afterwards  in 
Connecticut,  of  her  new  husband,  who  was  of  no  kin  to  the  chil- 
dren, was  under  no  legal  obligation  to  support  them,  and  was,  in 
fact,  paid  for  their  board  out  of  their  property,  make  his  domicile, 
or  the  domicile  derived  by  her  from  him,  the  domicile  of  the  chil- 
dren of  the  first  husband.  Immediately  upon  her  death  in  Con- 
necticut, in  1859,  these  children,  both  under  10  years  of  age,  were 
taken  back  to  Georgia  to  the  house  of  their  father's  mother  and 
unmarried  sister,  their  own  nearest  surviving  relatives;  and  they 
continued  to  live  with  their  grandmother  and  aunt  in  Georgia  un- 
til the  marriage  of  the  aunt  in  January,  1860,  to  Mr.  Micou,  a  cit- 
izen of  Alabama,  after  which  the  grandmother  and  the  children 
resided  with  Mr.  and  Mrs.  ISIicou  at  their  domicile  in  that  state. 

Upon  these  facts,  the  domicile  of  the  children  was  always  in 
Georgia  from  their  birth  until  January,  1860,  and  thenceforth  was 
either  in  Georgia  or  in  Alabama.  As  the  rules  of  investment  pre- 
vailing before  1863  in  Georgia  and  in  Alabama  did  not  substan- 
tially dififer,  the  question  in  which  of  those  two  states  their  domi- 
cile was  is  immaterial  to  the  decision  of  this  case;  and  it  is  there- 
fore unnecessary  to  consider  whether  their  grandmother  was  their 
natural  guardian,  and  as  such  had  the  power  to  change  their  dom- 
icile from  one  state  to  another.     See  Hargrave's  note  66  to  Co. 


INVESTMENTS  237 

Litt.  88b;  Reeve,  Dom.  Rel.  315;  2  Kent,  Comm.  219;  Code  Ga. 
1861,  §§  1754,  2452;  Darden  v.  Wyatt,  15  Ga.  414.  Whether  the 
domicile  of  Lamar  in  December,  1855,  when  he  was  appointed  in 
New  York  guardian  of  the  infants,  was  in  New  York  or  in  Georgia, 
does  not  distinctly  appear,  and  is  not  material ;  because,  for  the 
reasons  already  stated,  wherever  his  domicile  was,  his  duties  as 
guardian  in  the  management  and  investment  of  the  property  of  his 
wards  were  to  be  regulated  by  the  law  of  their  domicile. 

It  remains  to  apply  the  test  of  that  law  to  Lamar's  acts  or  omis- 
sions with  regard  to  the  various  kinds  of  securities  in  which  the 
property  of  the  wards  was  invested. 

1.  The  sum  which  Lamar  received  in  New  York  in  money  from 
Mrs.  Abercrombie  he  invested  in  1856  and  1857  in  stock  of  the 
Bank  of  the  Republic  at  New  York,  and  of  the  Bank  of  Commerce 
at  Savannah,  both  of  which  were  then,  and  continued  till  the  break- 
ing out  of  the  war,  in  sound  condition,  paying  good  dividends. 
There  is  nothing  to  raise  a  suspicion  that  Lamar,  in  making  these 
investments,  did  not  use  the  highest  degree  of  prudence ;  and  they 
were  such  as  by  the  law  of  Georgia  or  of  Alabama  he  might  prop- 
erly make.  Nor  is  there  any  evidence  that  he  was  guilty  of  neglect 
in  not  withdrawing  the  investment  in  the  stock  of  the  Bank  of 
Commerce  at  Savannah  before  it  became  worthless.  He  should 
not,  therefore,  be  charged  with  the  loss  of  that  stock.  The  invest- 
ment in  the  stock  of  the  Bank  of  the  Republic  of  New  York  being 
a  proper  investment  by  the  law  of  the  domicile  of  the  wards,  and 
there  being  no  evidence  that  the  sale  of  that  stock  by  Lamar's 
order  in  New  York,  in  1862,  was  not  judicious,  or  was  for  less  than 
its  fair  market  price,  he  was  not  responsible  for  the  decrease,  in  its 
value  between  the  times  of  its  purchase  and  of  its  sale.  He  had 
the  authority,  as  guardian,  without  any  order  of  court,  to  sell  per- 
sonal property  of  his  ward  in  his  own  possession,  and  to  reinvest 
the  proceeds.  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  11  Am. 
Dec.  441 ;  Ellis  v.  Essex  Merrimack  Bridge,  2  Pick.  (Mass.)  243. 
That  his  motive  in  selling  it  was  to  avoid  its  being  confiscated  by 
the  United  States  does  not  appear  to  us  to  have  any  bearing  on 
the  rights  of  these  parties.  And  no  statute  under  which  it  could 
have  been  confiscated  has  been  brought  to  our  notice.  The  act 
of  July  17,  1862,  c.  195,  §  6,  cited  by  the  appellant,  is  limited  to 
property  of  persons  engaged  in  or  abetting  armed  rebellion,  which 
could  hardly  be  predicated  of  two  girls  under  13  years  of  age. 
12  Stat.  591.  Whatever  liability,  criminal  or  civil,  Lamar  may 
have  incurred  or  avoided  as  towards  the  United  States,  there  was 
nothing  in  his  selling  this  stock,  and  turning  it  into  money,  of 
which  his  wards  had  any  right  to  complain. 

As  to  the  sum  received  from  the  sale  of  the  stock  in  the  Bank  of 
the  Republic,  we  find  nothing  in  the  facts  agreed  by  the  parties, 
upon  which  the  case  was  heard,   to  support  the  argument  that 


238  RIGHTS,  DUTIES,  AND   LIABILITIES  OF    GUARDIANS 

Lamar,  under  color  of  protecting  his  wards'  interests,  allowed  the 
funds  to  be  lent  to  cities  and  other  corporations  which  were  aid- 
ing in  the  rebellion.  On  the  contrary,  it  is  agreed  that  that  sum 
was  applied  to  the  purchase  in  New  York  of  guarantied  bonds  of 
the  cities  of  New  Orleans,  Memphis,  and  Mobile,  and  of  the  East 
Tennessee  &  Georgia  Railroad  Company;  and  the  description 
of  those  bonds,  in  the  receipt  afterwards  given  by  Micou  to  Lamar, 
shows  that  the  bonds  of  that  railroad  company,  and  of  the  cities 
of  New  Orleans  and  Memphis,  at  least,  were  issued  some  years 
before  the  breaking  out  of  the  rebellion,  and  that  the  bonds  of 
the  city  of  Memphis  and  of  the  railroad  company  were,  at  the  time 
of  their  issue,  indorsed  by  the  state  of  Tennessee.  The  company 
had  its  charter  from  that  state,  and  its  road  was  partly  in  Tennes- 
see and  partly  in  Georgia.  St.  Tenn.  1848,  c.  169.  Under  the  dis- 
cretion allowed  to  a  guardian  or  trustee  by  the  law  of  Georgia  and 
of  Alabama,  he  was  not  precluded  from  investing  the  funds  in 
his  hands  in  bonds  of  a  railroad  corporation,  indorsed  by  the  state 
by  which  it  was  chartered,  or  in  bonds  of  a  city.  As  Lamar, 
in  making  these  investments,  appears  to  have  used  due  care  and 
prudence,  having  regard  to  the  best  pecuniary  interests  of  his 
wards,  the  sum  so  invested  should  be  credited  to  him  in  this  case, 
unless,  as  suggested  at  the  argument,  the  requisite  allowance  has 
already  been  made  in  the  final  decree  of  the  circuit  court  in  the 
suit  brought  by  the  representative  of  the  other  ward,  an  appeal 
from  which  was  dismissed  by  this  court  for  want  of  jurisdiction 
in  104  U.  S.  465,  26  L.  Ed.  774. 

2.  Other  moneys  of  the  wards  in  Lamar's  hands,  arising  either 
from  dividends  which  he  had  received  on  their  behalf,  or  from  in- 
terest with  which  he  charged  himself  upon  sums  not  invested, 
were  used  in  the  purchase  of  bonds  of  the  Confederate  States, 
and  of  the  state  of  Alabama.  The  investment  in  bonds  of  the 
Confederate  States  was  clearly  unlawful,  and  no  legislative  act 
or  judicial  decree  or  decision  of  any  state  could  justify  it.  The  so- 
called  Confederate  government  was  in  no  sense  a  lawful  govern- 
ment, but  was  a  mere  government  of  force,  having  its  origin  and 
foundation  in  rebellion  against  the  United  States.  The  potes  and 
bonds  issued  in  its  name  and  for  its  support  had  no  legal  value 
as  money  or  property,  except  by  agreement  or  acceptance  of  par- 
ties capable  of  contracting  with  each  other,  and  can  never  be  re- 
garded by  a  court  sitting  under  the  authority  of  the  United  States 
as  securities  in  which  trust  funds  might  be  lawfully  invested. 
Thorington  v.  Smith,  8  Wall.  1,  19  L.  Ed.  361 ;  Head  v.  Starke, 
Chase,  312,  Fed.  Cas.  No.  6,293;  Horn  v.  Lockhart,  17  Wall.  570, 
21  L.  Ed.  657;  Confederate  Note  Case,  19  Wall.  548,  22  L.  Ed.  196; 
Sprott  V.  United  States,  20  Wall.  459,  22  L.  Ed.  371;  Fretz  v. 
Stover,  22  Wall.  198,  22  L.  Ed.  769;  Alexander  v.  Bryan,  110  U.  S. 
414,  4  Sup.  Ct.  107,  28  L.  Ed.  195.    An  infant  has  no  capacity,  by 


INVESTMENTS  239 

contract  with  his  guardian,  or  by  assent  to  his  unlawful  acts,  to 
affect  his  own  rights.  The  case  is  governed  in  this  particular  by 
the  decision  in  Horn  v.  Lockhart,  in  which  it  was  held  that  an 
executor  was  not  discharged  from  his  liability  to  legatees  by  hav- 
ing invested  funds,  pursuant  to  a  statute  of  the  state,  and  with 
the  approval  of  the  probate  court  by  which  he  had  been  ap- 
pointed, in  bonds  of  the  Confederate  States,  which  became  worth- 
less in  his  hands.  Neither  the  date  nor  the  purpose  of  the  issue 
of  the  bonds  of  the  state  of  Alabama  is  shown,  and  it  is  unneces- 
sary to  consider  the  lawfulness  of  the  investment  in  those  bonds, 
because  Lamar  appears  to  have  sold  them  for  as  much  as  he  had 
paid  for  them,  and  to  have  invested  the  proceeds  in  additional 
Confederate  States  bonds,  and  for  the  amount  thereby  lost  to  the 
estate  he  was  accountable. 

3.  The  stock  in  the  Alechanics'  Bank  of  Georgia,  which  had  be- 
longed to  William  W.  Sims  in  his  life-time,  and  stood  on  the  books 
of  the  bank  in  the  name  of  his  administratrix,  and  of  which  one- 
third  belonged  to  her,  as  his  widow,  and  one-third  to  each  of  the 
infants,  never  came  into  Lamar's  possession ;  and  upon  a  request 
made  by  him,  the  very  next  month  after  his  appointment,  the  bank 
refused  to  transfer  to  him  any  part  of  it.  He  did  receive  and  ac- 
count for  the  dividends;  and  he  could  not,  under  the  law  of  Geor- 
gia concerning  foreign  guardians,  have  obtained  possession  of  prop- 
erty of  his  wards  within  that  state  without  the  consent  of  the  or- 
dinary. Code  1861,  §§  1834-1839.  The  attempt  to  charge  him 
for  the  value  of  the  principal  of  the  stock  must  fail  for  two  reas- 
sons:  First.  This  very  stock  had  not  only  belonged  to  the  father 
of  the  wards  in  his  life-time,  but  it  was  such  stock  as  a  guardian 
or  trustee  might  properly  invest  in  by  the  law  of  Georgia.  Second. 
No  reason  is  shown  why  this  stock,  being  in  Georgia,  the  domicile 
of  the  wards,  should  have  been  transferred  to  a  guardian  who  had 
been  appointed  in  New  York  during  their  temporary  residence 
there.  The  same  reasons  are  conclusive  against  charging  him  with 
the  value  of  the  bank  stock  in  Georgia,  which  was  owned  by  Mrs. 
Abercrombie  in  her  own  right,  and  to  which  Mr.  Abercrombie  be- 
came entitled  upon  her  death.  It  is  therefore  unnecessary  to  con- 
sider whether  there  is  sufficient  evidence  of  an  immediate  sur- 
render by  him  of  her  interest  to  her  children. 

The  result  is  that  both  the  decrees  of  the  circuit  court  in  this 
case  must  be  reversed,  and  the  case  remanded  for  further  proceed- 
ings in  conformity  with  this  opinion. 


240  TEKMINATION   OF  GUARDIANSHIP 


TERMINATION   OF  GUARDIANSHIP— ENFORCING 
GUARDIAN'S  LIABILITY 

I.  Guardians'  Bonds  ^ 


BISBEE  V.  GLEASON. 

(Supreme  Court  of  Nebraska,  1887.     21  Neb.  534,  32  N.  W.  578.) 

Reese,  J.^  This  action  was  commenced  in  the  district  court  by 
defendant  in  error,  in  which  he  sought  to  recover  a  judgment  for 
$1,900  and  interest,  against  E.  M.  Bisbee  as  principal,  and  the 
other  defendants  in  the  action  as  sureties,  upon  a  guardian's  bond 
executed  by  them  in  favor  of  defendant  in  error,  as  the  ward  of 
said  Bisbee.  Plaintiffs  in  error  demurred  to  the  petition  upon  the 
ground  that  it  did  not  state  facts  sufficient  to  state  a  cause  of 
action.  The  demurrer  was  overruled.  Plaintiffs  in  error  refused 
to  answer  over,  and  judgment  was  rendered  against  them  for 
$2,615.05,  the  amount  found  due  upon  the  bond.  The  error  as- 
signed is  that  the  district  court  erred  in  overruling  the  demur- 

•>n*>  "is  'K  "1^ 

The  petition  contains  no  averment  that  any  settlement  with  the 
guardian  had  ever  been  made  by  the  county  court,  nor  that  any  sum 
had  ever  been  found  due  plaintiff  by  that  tribunal.  Substantially 
the  same  question  presented  here  was  before  this  court  in  Ball  v. 
La  Clair,  17  Neb.  39,  22  N.  W.  118,  and  it  was  there  held  that  a 
right  of  action  upon  a  guardian's  bond  first  accrued  to  the  ward 
when  the  amount  remaining  in  the  hands  of  the  guardian  is  as- 
certained by  the  county  court  on  the  final  settlement  of  the  guard- 
ian's account.    This,  we  think,  correctly  states  the  law. 

Section  9  of  chapter  34  of  the  Compiled  Statutes  of  1885  provides 
that  "every  such  guardian  shall  give  a  bond,  with  surety  or  sure- 
ties, to  the  judge  of  probate,  in  such  sum  as  the  court  shall  order, 
with  condition  as  follows ;  *  *  *  Fourth,  at  the  expiration  of 
his  trust  to  settle  his  accounts  with  the  court,  or  with  the  ward, 
or  his  legal  representatives,  and  to  pay  over  and  deliver  all  the 
estate  and  effects  remaining  in  his  hands,  or  due  from  him  on 
such  settlement  to  the  person  or  persons  lawfully  entitled  thereto." 

We  need  not  here  copy  the  provisions  of  the  constitution  and 
statutes  of  the  state  which  confer  exclusive  jurisdiction  upon  the 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
189-191. 

2  Part  of  the  opinion  is  omitted. 


guardians'  bonds  241 

county  courts  in  all  matters  relating  to  the  settlement  of  the  ac- 
counts of  guardians,  as  they  are  fully  set  out  in  the  opinion  of  the 
court  in  Ball  v.  La  Clair,  written  by  the  then  Chief  Justice  Cobb ; 
and,  in  so  far  as  that  decision  is  applicable  to  the  case  at  bar,  we 
shall  be  content  with  it  as  fully  stating  the  law,  and  meeting  all 
the  requirements  of  the  case.  But  it  is  claimed  that,  since  it  is 
alleged  in  the  petition  in  this  case  that  plaintiff  in  error,  Bisbee, 
was  cited  to  a  settlement  by  the  county  judge,  and  refused  to  obey 
the  citation,  the  case  is  brought  directly  within  the  language  of 
the  opinion  in  Ball  v.  La  Clair,  wherein  the  writer  thereof  says 
that  the  liability  of  a  guardian  "to  a  suit  in  a  court  of  law  for  the 
balance  due  her  wards  on  her  guardianship  account,  and  certainly 
the  liability  of  the  sureties,  would  arise  only  upon  her  refusal  or 
failure  to  obey  some  order  of  the  county  court  in  that  behalf." 
We  do  not  so  understand  the  meaning  of  the  language  referred  to 
To  the  mind  of  the  writer,  the  meaning  clearly  is  that  the  county 
court  had  jurisdiction  to  cite  the  guardian  to  a  settlement,  and, 
when  such  settlement  was  made,  to  order  such  guardian  "to  pay 
into  court,  or  to  pay  over  to  her  late  wards,  such  sum  as  should 
be  found  due  them  upon  such  settlement;"  or,  in  other  words, 
if  either  order  was  made  and  not  complied  with,  the  action  could 
be  maintained,  and  not  otherwise. 

Neither  do  we  think  that  the  fourth  clause  quoted  Irom  section 
9  of  chapter  34  can  be  so  construed  as  to  confer  the  right  to  sue 
without  such  settlement  having  first  been  made.  Substantially  the 
same  language  occurs  in  the  statutes  of  California ;  and  in  Allen  v. 
Tiffany,  53  Cal.  16,  it  was  held  that  no  action  could  be  maintained 
until  after  the  settlement  was  made.  In  the  opinion  it  is  said: 
"Within  a  reasonable  time  after  the  ward  arrives  at  full  age,  the 
statute  provides  that  the  guardian  may  settle  his  accounts  with 
the  ward ;  but,  considering  the  previous  relations  of  the  parties, 
it  is  not  to  be  supposed  that  it  was  the  intention  that  such  settle- 
ment should,  of  itself,  constitute  a  discharge,  or  that  it  should  not 
be  subject  to  the  approval  or  disapproval  of  the  probate  judge  prior 
to  the  discharge  by  him.  The  probate  judge  has  the  exclusive 
jurisdiction  to  determine  the  state  of  accounts  between  the  guard- 
ian and  ward.  The  ward  may  agree  upon  a  settlement  with  his 
guardian,  subject  to  the  approval  of  the  probate  judge,  or  may  ap- 
ply for  a  citation  compelling  the  guardian  to  settle  his  accounts 
before  the  probate  judge.  But  to  hold  that,  prior  to  such  account- 
ing before  the  probate  judge,  or  to  his  order  approving  the  settle- 
ment in  pais,  the  ward  may  bring  suit  in  the  district  court  for  a 
supposed  balance,  would  destroy  the  symmetry  and  efficiency  of 
the  system  furnished  by  our  law  for  the  appointment  and  conduct 
of  guardians  of  infants."  To  the  same  effect,  see,  also,  Newton  v. 
Hammond,  38  Ohio  St.  430,  and  cases  there  cited. 
COOLEY  P.&  D.Rel.— 16 


242  TERMINATION    OF  GUARDIANSHIP 

But  it  is  said  that  the  county  court  cited  plaintiff  in  error  Bis- 
bee  to  appear  and  settle  his  accounts,  and  that  he  ignored  the 
citation,  and  no  settlement  could  be  made,  and  that  for  that  reason 
this  action  should  be  maintained.  We  can  see  no  sufficient  reason 
for  such  conclusion.  As  we  have  seen,  the  county  court  not  only 
has  the  authority  to  require  settlements  to  be  made,  but  it  has  ex- 
clusive jurisdiction  in  such  matters.  It  is  true  that  a  guardian  may 
ignore  the  citation  to  settle,  but  it  is  equally  true  that  the  county 
court  has  full  power  to  examine  into  his  accounts,  and  charge  him 
with  a  balance,  after  such  citation,  in  his  absence  as  in  his  presence. 
It  also  has  all  the  facilities  that  any  court  has  for  bringing  evidence 
before  it,  and  can  just  as  well  settle  the  accounts  of  a  guardian  upon 
default  as  can  the  district  court.  It  has  the  same  power  to  compel 
the  attendance  of  witnesses  as  the  district  court,  and  its  powers 
in  that  behalf  are  just  as  extensive.  But  the  provision  of  the  stat- 
ute giving  the  exclusive  jurisdiction  to  the  county  court  must  be 
decisive  of  the  whole  question,  without  reference  to  any  other  con- 
sideration. 

The  judgment  of  the  district  court  is  therefore  reversed,  the  de- 
murrer sustained,  and  the  cause  remanded  for  further  proceedings. 


MITCHELL  V.  KELLY. 

(Supreme  Court  of  Kansas,  1910.     82  Kan.  1,  107  Pac.  782,  136  Am. 

St.   Rep.   97.) 

Action  by  Hillis  S.  Mitchell,  guardian  of  Leanna  Taylor  and 
others,  against  S.  J.  Kelly,  administrator  of  Henry  A.  Taylor.  A 
demurrer  to  the  petition  was  sustained,  and  plaintiff  appeals. 

BuRCH,  J.^  The  question  in  this  case  relates  to  the  liability  of 
a  surety  on  the  bond  of  a  guardian  for  minor  children.  The  peti- 
tion charged  that  a  deceased  guardian  converted  money  belonging 
to  his  wards  to  his  own  use,  became  insolvent,  and  died  without 
an  accounting.  The  surety  on  the  bond  demurred  on  the  ground 
that  a  settlement  of  the  guardian's  accounts  in  the  probate  court 
is  a  condition  precedent  to  recovery  against  him.  The  demurrer 
was  sustained,  and  the  present  guardian,  who  brought  the  action, 
appeals. 

The  statute  relating  to  guardians  and  wards  (chapter  46,  Gen. 
St.  1901)  requires  that  the  property  of  a  minor  shall  be  managed 
by  a  guardian  who  upon  due  appointment  and  qualification  shall 
take  charge  of  it  for  that  purpose.  Section  7  reads  as  follows : 
"Guardians  appointed  to  take  charge  of  the  property  of  the  minor 
must  give  bond,  with  surety  to  be  approved  by  the  court,  in  a  pen- 

»  Part  of  the  opinion  is  omitted. 


GUARDIANS'  BONDS  243 

alty  double  the  value  of  the  personal  estate  and  of  the  rents  and 
profits  of  the  real  estate  of  the  minor,  conditioned  for  the  faith- 
ful discharge  of  their  duties  as  such  guardian  according  to  law. 
They  must  also  take  an  oath  of  the  same  tenor  as  the  condition  of 
the  bond." 

The  bond  given  in  this  case  was  conditioned  as  follows:  "The 
condition  of  the  above  bond  is  that  if  Henry  A.  Taylor,  guardian 
of  the  estate  of  Leanna,  Richard  M.,  and  Edward  S.  Taylor,  minors, 
shall  faithfully  discharge  his  duties  as  guardian,  according  to  law, 
account  for,  pay,  and  deliver  all  money  and  property  of  said  estate, 
and  perform  all  other  things  touching  said  guardianship  required 
by  law,  or  the  order  or  decree  of  any  court  having  jurisdiction,  then 
the  above  bond  to  be  void,  otherwise  to  remain  in  full  force." 

The  very  situation  which  this  bond  was  given  to  meet  is  pre- 
sented. The  guardian  used  up  the  money  of  his  infant  wards,  is 
dead,  and  left  no  estate  from  which  they  may  be  reimbursed.  His 
sureties  must  pay,  and  the  enforcement  of  their  liability  ought  not 
to  be  fettered  by  rules  based  upon  any  considerations  except  those 
of  substance. 

The  district  court  possesses  both  law  and  equity  powers  which 
may  be  exercised  in  the  same  proceeding.  It  has  general  jurisdic- 
tion to  investigate  accounts  and  to  ascertain  and  declare  balances 
due,  and  it  possesses  the  common-law  powers  always  exercised  by 
chancery  courts  to  settle  guardians'  accounts.  Its  methods  and 
rules  of  procedure  are  as  well  calculated  to  attain  just  results  as 
are  those  of  the  probate  court.  A  finding  of  a  balance  due  from  the 
defunct  guardian  and  of  facts  making  the  equivalent  of  a  default 
must  precede  a  judgment  holding  the  surety  liable.  It  is  no  det- 
riment to  the  surety  that  he  is  a  party  to  the  preliminary  inquiry, 
and  may  actively  participate  in  it. 

There  is  no  statute  forbidding  the  district  court  to  act,  and 
why  should  it  refuse  to  do  so?  The  only  reason  offered  is  that  by 
analogy  the  procedure  usually  followed  in  cases  of  defaulting  exe- 
cutors and  administrators  should  be  adopted.  The  analogy  is  de- 
stroyed by  this  fact.  Administration  is  a  definite  proceeding  to  a 
definite  end,  the  collection  of  assets,  the  payment  of  debts,  and 
the  distribution  of  the  residue.  To  accomplish  this  purpose,  the 
probate  court  has  full  possession  of  the  entire  subject-matter.  All 
results  are  to  be  worked  out  there,  and  to  invoke  the  jurisdiction 
of  the  district  court  with  reference  to  the  estate's  accounts  is  to 
interfere  with  the  due  and  orderly  conduct  of  a  pending  proceed- 
ing. 

In  no  sense  is  this  true  in  cases  of  guardianship  terminated  by 
the  death  of  the  guardian.  The  guardian  is  a  managing  agent  for 
his  ward,  nobody  is  interested  in  his  conduct  except  the  ward,  and 
his  duty  is  primarily  to  account  to  the  ward  rather  than  to  the 


244  TERMINATION   OF   GUARDIANSHIP 

court.  This  fact  is  made  clear  by  the  omission  from  the  statute 
of  any  provision  for  a  final  settlement,  as  of  the  estate  of  a  de- 
ceased person.  The  ward,  on  reaching  his  majority,  may  settle 
with  the  guardian  as  he  pleases.  When  the  guardian  dies,  the 
trust  does  not  pass  to  his  executor  or  administrator.  His  personal 
representative  stands  toward  the  ward  as  any  third  person  having 
money  or  property  of  the  ward  in  his  possession.  There  is  noth- 
ing like  a  pending  cause  before  the  probate  court  to  be  broken 
into,  and  no  substantial  reason  is  apparent  why  the  new  guardian 
may  not  bring  his  action  in  the  district  court. 

The  authorities  are  divided  upon  this  question  (21  Cyc.  240),  and 
the  court  adopts  the  view  which  seems  to  accord  best  with  the 
statutes  and  legal  policy  of  this  state.  *  ♦  *  Judgment  re- 
versed. 


PART  IV 

INFANTS,   PERSONS  NON  COMPOTES  MENTIS, 

AND  ALIENS 


INFANTS 
I.  Infancy  Defined  • 


STATE  V.  CLARKE. 

(Court  of  General  Sessions  of  Delaware,  1840.    3  Har.  557.) 

The  defendant  was  presented  by  the  grand  jury  for  illegal  vot- 
ing at  the  late  inspector's  election.  The  presentment  set  forth 
these  facts,  to  wit:  That  the  defendant  was  born  on  the  7th  of 
October,  A.  D.  1819,  and  voted  at  the  election  held  on  the  6th  of 
October,  1840,  upon  age. 

In  his  behalf  a  motion  was  now  made  to  quash  the  presentment, 
on  the  ground  that  it  appeared  from  the  face  of  it  that  the  defend- 
ant was  of  full  age  at  the  time  he  voted,  and  was,  therefore,  not 
guilty.  It  was  proved  that  he  stated  the  facts  to  the  judges  of  the 
election,  a  majority  of  whom  decided  that  he  had  a  right  to  vote. 

Bayard,  C.  J.  Many  persons  suppose  that  the  expression  in  the 
constitution  relative  to  the  qualifications  of  voters  is  that  citizens 
between  the  ages  of  twenty-one  and  twenty-two  years  shall  be  en- 
titled to  vote  without  paying  tax;  and  on  this  the  common,  but 
erroneous,  notion  is  that  a  man  must  be  in  point  of  fact  actually 
within  his  twenty-second  year,  before  he  can  vote.  The  premises 
and  conclusion  are  both  wrong.  "Every  free  white  male  citizen 
of  the  age  of  twenty-one  years,  and  under  the  age  of  twenty-two 
years,  having  resided  as  aforesaid,  shall  be  entitled  to  vote  with- 
out payment  of  any  tax."  Const,  art.  4,  §  1.  To  ascertain  when  a 
man  is  legally  "of  the  age  of  twenty-one  years,"  we  must  have 
reference  to  the  common  law,  and  those  legal  decisions  which  from 
time  immemorial  have  settled  this  matter,  in  reference  to  all  the 
important  affairs  of  life.    When  can  a  person  make  a  valid  will; 

1  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  § 
192. 

(245) 


246  INFANTS 

when  can  he  execute  a  deed  for  land;  when  make  any  contract  or 
do  any  act  which  a  man  may  do,  and  an  infant,  that  is,  a  person 
under  the  age  of  twenty-one  years,  cannot  do?  On  this  question 
the  law  is  well  settled;  it  admits  of  no  doubt.  A  person  is  "of 
the  age  of  twenty-one  years"  the  day  before  the  twenty-first  anni- 
versary of  his  birth  day.  It  is  not  necessary  that  he  shall  have 
entered  upon  his  birth  day,  or  he  would  be  more  than  twenty-one 
years  old.  He  is,  therefore,  of  age  the  day  before  the  anniversary 
of  his  birth;  and,  as  the  law  takes  no  notice  of  fractions  of  a  day, 
he  is  necessarily  of  age  the  whole  of  the  day  before  his  twenty- 
first  birth  day ;  and  upon  any  and  every  moment  of  that  day  may 
do  any  act  which  any  man  may  lawfully  do.  1  Chit.  Gen.  Prac. 
766.  "It  is  to  be  observed,  that  a  person  becomes  of  age  on  the 
first  instant  of  the  last  day  of  the  twenty-first  year  next  before  the 
anniversary  of  his  birth ;  thus,  if  a  person  were  born  at  any  hour 
of  the  1st  of  January,  A.  D.  1801  (even  a  few  minutes  before  12 
o'clock  of  the  night  of  that  day),  he  would  be  of  full  age  at  the 
first  instant  of  the  31st  of  December,  A.  D.  1821,  although  nearly 
forty-eight  hours  before  he  had  actually  attained  the  full  age  of 
twenty-one,  according  to  years,  days,  hours  and  minutes;  because 
there  is  not  in  law  in  this  respect  any  fraction  of  a  day ;  and  it  is 
the  same  whether  a  thing  is  done,  upon  one  moment  of  the  day  or 
another." 

On  the  face  then  of  this  presentment,  it  appears  that  Mr.  Clarke 
was  entitled  to  vote  on  the  6th  of  October,  being  on  that  day  of 
the  age  of  twenty-one  years;  and  the  presentment,  showing  no 
offence,  must  be  quashed. 


II.  Privileges  and  Disabilities  ' 
1.  Capacity  to  Sue  and  Defend 


BERNARD  v.  PITTSBURGH  COAL  CO. 

(Supreme  Court  of  Michigan,  1904.    137  Mich.  279, 100  N.  W.  396.) 
Action  by  Frank  Bernard,  Jr.,  by  his  next  friend,  against  the 
Pittsburgh  Coal  Company.     From  a  judgment  for  plaintiff,  the  de- 
fendant brings  error. 

Carpenter,  j.3     *     *     *     When  this  suit  was  commenced,  plain- 
tiff was  a  minor,  and  it  was  brought  in  his  name  by  his  father  as 

2  For  discussion  of  principles  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
194-198. 

8  Part  of  the  opinion  is  omitted. 


PRIVILEGES   AND    DISABILITIES  247 

next  friend.  When  the  trial  occurred  plaintiff  had  reached  his 
majority,  and  it  is  insisted  that  the  suit  cannot  be  prosecuted  under 
the  original  declaration.  It  is  well  settled  that  plaintiff,  on  arriv- 
ing at  his  majority,  may,  if  he  elects,  prosecute  a  suit  commenced 
when  he  was  a  minor  by  his  next  friend.  See  Tucker  v.  Wilson, 
68  Miss.  693,  9  South.  898;  Clements  v.  Ramsey,  4  S.  W.  311,  9 
Ky.  Law  Rep.  172;  Reed  v.  Lane,  96  Iowa,  454,  65  N.  W.  380; 
Lasseter  v.  Simpson,  78  Ga.  61,  3  S.  E.  243;  Sims  v.  Renwick,  25 
Ga.  58;  Holmes  v.  Adkins,  2  Ind.  398;  Shuttlesworth  v.  Hughey, 
6  Rich.  (S.  C.)  329,  60  Am.  Dec.  130.  It  seems  proper  in  such  a 
case  by  a  formal  amendment  of  the  record  to  show  that  the  suit 
is  prosecuted  by  plaintiff  himself.  This  may  be  done  either  by 
striking  out  the  name  of  the  next  friend  (see  Sims  v.  Renwick ; 
Lasseter  v.  Simpson,  supra)  or  by  a  suggestion  of  record  that  plain- 
tiff has  attained  his  full  age  (see  Shuttlesworth  v.  Hughey;  Clem- 
ents V.  Ramsey,  supra). 

We  should  not,  however,  reverse  a  judgment  for  a  failure  to 
make  such  an  amendment,  which  it  seems  may  be  made  as  a  mat- 
ter of  course  (see  Clements  v.  Ramsey,  supra),  unless  that  fail- 
ure was  in  some  manner  prejudicial  to  defendant.  As  the  record 
stands,  it  indicates  that  the  next  friend,  and  not  plaintiff  him- 
self, is  responsible  for  any  costs  that  might  be  awarded  defendant. 
See  Holmes  v.  Adkins,  supra.  If,  therefore,  defendant  had  pre- 
vailed in  this  suit,  it  might  possibly  have  contended  that  its  right 
to  collect  its  costs  from  plaintiff  was  prejudiced  by  the  failure  to 
make  the  amendment  under  consideration,  though  it  is  probable 
that  in  that  case  its  rights  would  have  been  protected  by  an  amend- 
ment nunc  pro  tunc.  But,  as  plaintiff  recovered  judgment  and 
costs,  we  are  unable  to  see  how  defendant  was  in  any  manner 
prejudiced. 

We  do  not  think  that  the  record  contains  any  error,  or  that  any 
other  complaint  of  the  defendant  demands  discussion.  The  judg- 
ment of  the  circuit  court  is  affirmed,  with  costs. 


WEAVER  et  al.  v.  GLENN. 
(Supreme  Court  of  Appeals  of  Virginia,  1905.    104  Va.  443,  51  S.  E.  835.) 

Action  by  J.  C.  Glenn  against  Mary  F.  Weaver  and  others. 
Judgment  for  plaintiff.     Defendants  bring  error. 

Whittle,  J.  This  action  of  ejectment  was  brought  by  the  de- 
fendant in  error  against  the  plaintiffs  in  error  to  recover  the  lanc^ 
described  in  the  declaration.  At  the  trial  the  defendants,  without 
waiving  any  of  their  rights,  agreed  with  the  plaintiff  to  submit 
all  matters  of  law  and  fact  to  the  determination  of  the  court,  where- 


248  INFANTS 

upon  a  joint  judgment  was  rendered  against  them  for  the  land  in 
controversy  and  costs. 

It  appears  that  four  out  of  the  five  claimants  of  the  property  in 
fee  simple  are  infants,  and  that  no  guardian  ad  litem  was  appointed 
to  defend  them,  which  omission  constitutes  the  first  assignment 
of  exror. 

In  every  action  or  suit  against  an  infant  defendant,  it  is  the  duty 
of  the  court  wherein  the  same  is  pending,  or  of  the  judge  or  clerk 
thereof  in  vacation,  to  appoint  a  guardian  ad  litem  to  represent 
the  interest  or  estate  of  the  infant.    Code  Va.  1904,  p.  1714,  §  3255. 

"So  necessary  is  the  appointment  of  a  guardian  ad  litem  es- 
teemed," says  Mr.  Minor,  "that  although  the  process  against  an 
infant  is  issued  and  executed  against  him  just  as  against  an  adult, 
and  the  declaration  or  bill  setting  forth  the  complaint  is  framed 
and  filed  in  like  manner,  yet,  after  the  declaration  or  bill  is  filed, 
no  rule  or  any  proceeding  whatever  can  be  had  lawfully  until  a 
guardian  is  designated,  and  any  step  that  is  taken  will  be  void 
as  to  the  infant."  1  Minor,  Inst.  (2d  Ed.)  432;  1  Barton's  Law 
Pr.  206. 

In  Turner  v.  Barraud,  102  Va.  324,  46  S.  E.  318,  this  court  held: 
"The  only  way  known  to  our  law  of  bringing  an  infant  before  a 
court  is  by  a  guardian  ad  litem,  appointed  to  conduct  his  defense 
for  him.  If  he  has  appeared  in  a  suit  by  a  guardian  ad  litem  reg- 
ularly appointed  for  that  purpose,  he  cannot  afterwards,  in  an  in- 
dependent suit,  impeach  a  decree  rendered  against  him  for  errors 
and  irregularities  in  the  proceedings  in  the  suit  in  which  the  de- 
cree was  rendered ;  but,  if  no  guardian  ad  litem  was  appointed  or 
recognized  by  the  court,  he  is  not  bound  by  the  action  of  one  who 
assumed  to  act  for  him,  and  the  decree  against  him  is  void,  and 
may  be  collaterally  assailed." 

In  the  yet  more  recent  case  of  Langston  v.  Bassette,  104  Va. 
47,  51  S.  E.  218,  it  is  said:  "As  an  infant  can  only  appear  and  de- 
fend by  guardian  ad  litem,  proceedings  against  him  are  generally 
fatally  defective  unless  the  record  shows  that  a  guardian  ad  litem 
was  assigned  him.  Code  1887,  §  3255  (Code  Va.  1904,  p.  1714). 
See  Roberts  v.  Stanton,  2  Munf.  129,  5  Am.  Dec.  463 ;  Cole  v.  Pen- 
nell,  2  Rand.  174;  Parker  v.  McCoy,  10  Grat.  594;  Ewing's  Adm'r 
V.  Ferguson's  Adm'r,  33  Grat.  548;  Turner  v.  Barraud,  102  Va. 
324,  331,  46  S.  E.  318;  note  to  Caperton  v.  Gregory,  11  Grat. 
(Michie's  Ed.)  at  page  251  et  seq.,  where  a  number  of  cases  on 
the  subject  are  collected." 

The  omission  to  appoint  a  guardian  ad  litem  for  an  infant  de- 
fendant is  reversible  error  in  all  cases,  unless  it  appears  that  the 
judgment  or  decree  is  for  the  infant,  and  not  to  his  prejudice. 
Code  Va.  1904,  p.  1830,  §  3449;    Langston  v.  Bassette,  supra. 

Without  passing  upon  any  other  assignment,  we  are  of  opinion 


CONTRACTS  OP   INFANTS  249 

that  for  this  initial  error  the  judgment  complained  of  must  be  re- 
versed, and  the  case  remanded  for  further  proceedings  to  be  had 
therein  in  conformity  with  this  opinion.* 


III.  Contracts  of  Infants* 


COURSOLLE  V.  WEYERHAUSER. 

(Supreme  Court  of  Minnesota,  1S97.    69  Minn.  328,  72  N.  W.  697.) 

Action  by  Henry  Coursolle  against  Frederick  Weyerhauser  and 
others  to  determine  adverse  claims  to  land.  The  plaintiff  is  a 
half-blood  of  the  Sioux  tribe.  In  1856,  under  the  act  of  congress 
of  July  17,  1854  (10  Stat.  304,  c.  83),  there  was  issued  to  him  what 
was  known  as  "half-breed  scrip"  for  320  acres  of  land.  In  Jan- 
uary, 1870,  when  he  was  about  20  years  old,  he  executed  a  power 
of  attorney  appointing  one  Dorr  his  attorney  to  select  and  locate 
the  lands  he  was  entitled  to  by  reason  of  the  scrip,  and  by  another 
power  of  attorney  gave  Dorr  authority  to  sell  and  convey  such 
lands.  Assuming  to  act  under  these  powers  Dorr  located  certain 
lands  and  subsequently  sold  and  conveyed  them  to  Brown.  The 
entry  of  the  lands  having  been  canceled  by  the  commissioner  of 
the  general  land  office  on  the  ground  of  the  infancy  of  the  holder 
of  the  scrip,  plaintiff  in  1878  executed  another  power  of  attorney 
authorizing  Brown  to  locate  the  scrip.  Brown  by  virtue  of  this 
power  relocated  the  scrip  on  the  same  lands.  Defendants  claim 
under  successive  conveyances  under  Brown.  There  was  judgment 
for  defendants,  and  plaintiff  appeals. 

Mitchell,  j.s  *  *  *  We  are  of  the  opinion  that  the  doctrine 
of  ratification  is  applicable.  Two  defects  in  the  Brown  title  were: 
First,  that  plaintiff'  was  a  minor  when  he  executed  to  Dorr  the 
power  of  attorney  to  sell  and  convey  the  land ;  and,  second,  that 
the  conveyance  was  not  authorized  by  the  power,  because  the  land 
had  not  then  been  entered  with  the  scrip.  We  are  of  the  opinion 
that  plaintiff,  by  his  conduct,  had  fully  ratified  both  the  power  of 
attorney  and  the  deed  assumed  to  be  executed  under  it — at  least,  as 
to  both  these  defects.  As  respects  the  fact  that  the  conveyance 
before  the  entry  of  the  land  was  unauthorized  by  the  power,  there 
is  no  difficulty  in  holding  that  the  conveyance  was  subsequently 
ratified  by  plaintiff's  conduct. 

*  Compare  Grauman,  Marx  &  Cline  Co.  v.  Krienitz,  post,  p.  251. 

5  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  § 
199. 

6  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  Is  rewritten. 


250  INFANTS 

We  are  not  unmindful  of  the  general  rule  that  the  form  of  rati- 
fication should  be  the  same  as  required  for  the  original  appoint- 
ment; but  until  the  amendment  of  Gen.  St.  1878,  c.  41,  §  12  (Gen. 
St.  1894,  §  4215),  in  1887,  the  authority  of  an  agent  to  make  a  con- 
tract for  the  sale  of  land  was  not  required  to  be  in  writing.  Dick- 
erman  v.  Ashton,  21  Minn.  538;  Brown  v.  Eaton,  21  Minn.  409. 
And,  where  an  agent  authorized  to  contract  to  sell  conveys  under 
a  defective  power,  the  deed  will  be  treated  as  a  good  contract  to 
sell.  Minor  v.  Willoughby,  3  Minn.  225  (Gil.  154);  Hersey  v. 
Lambert,  50  Minn.  2>7Z,  52  N.  W.  963.  Ratification  may  be  implied 
from  the  principal's  acts,  and  from  silence  and  nonaction  as  well 
as  from  affirmative  words  and  acts.  The  execution  of  the  power  of 
attorney  in  1878  to  relocate  the  scrip  for  the  purpose  of  protecting 
Brown's  title,  after  being  fully  advised  of  all  the  facts,  followed 
by  an  entire  omission  for  17  years  to  assert  by  word  or  act  any 
claim  to  the  land,  or  to  repudiate  what  had  been  done  in  his  name, 
constituted  a  ratification  on  plaintiff's  part  of  what  had  been  done, 
as  far  as  those  things  were  capable  of  ratification. 

The  rule  is  that  the  act  to  be  ratified  must  be  voidable  merely, 
and  not  absolutely  void;  and  the  question  remains — which  to  our 
minds  is  the  most  important  one  in  the  case — whether  the  act  of 
a  minor  in  appointing  an  agent  or  attorney  is  wholly  void,  or 
merely  voidable.  Formerly  the  acts  and  contracts  of  infants  were 
held  either  void,  or  merely  voidable,  depending  on  whether  they 
were  necessarily  prejudicial  to  their  interests,  or  were  or  might  be 
beneficial  to  them.  This  threw  upon  the  courts  the  burden  of  de- 
ciding in  each  particular  case  whether  the  act  in  question  was  nec- 
essarily prejudicial  to  the  infant.  Latterly  the  courts  have  refused 
to  take  this  responsibility,  on  the  ground  that,  if  the  infant  wishes 
to  determine  the  question  for  himself  on  arriving  at  his  majority, 
he  should  be  allowed  to  do  so,  and  that  he  is  sufficiently  protected 
by  his  right  of  avoidance.  Hence  the  almost  universal  modern 
doctrine  is  that  all  the  acts  and  contracts  of  an  infant  are  merely 
voidable.  Upon  this  rule  there  seems  to  have  been  ingrafted  the 
exception  that  the  act  of  an  infant  in  appointing  an  agent  or  at- 
torney, and  consequently  all  acts  and  contracts  of  the  agent  or 
attorney  under  such  appointment,  are  absolutely  void. 

This  exception  does  not  seem  to  be  founded  on  any  sound  prin- 
ciple, and  all  the  text-writers  and  courts  who  have  discussed  the 
subject  have,  so  far  as  we  can  discover,  conceded  such  to  be  the 
fact.  On  principle,  we  think  the  power  of  attorney  of  an  infant, 
and  the  acts  and  contracts  made  under  it,  should  stand  on  the 
same  footing  as  any  other  act  or  contract,  and  should  be  consid- 
ered voidable  in  the  same  manner  as  his  personal  acts  and  con- 
tracts are  considered  voidable.  If  the  conveyance  of  land  by  an 
infant  personally,  who  is  of  imperfect  capacity,  is  only  voidable, 


CONTRACTS  OF   INFANTS  251 

as  is  the  law,  it  is  difficult  to  see  why  his  conveyance  made  through 
an  attorney  of  perfect  capacity  should  be  held  absolutely  void.  It 
is  a  noticeable  fact  that  nearly  all  the  old  cases  cited  in  support 
of  this  exception  to  the  general  rule  are  cases  of  technical  war- 
rants of  attorney  to  appear  in  court  and  confess  judgment.  In 
these  cases  the  courts  hold  that  they  would  always  set  aside  the 
judgment  at  the  instance  of  the  infant,  but  we  do  not  find  that  any 
of  them  go  as  far  as  to  hold  that  the  judgment  is  good  for  no  pur- 
pose and  at  no  time.  The  courts  have  from  time  to  time  made  so 
many  exceptions  to  the  exception  itself  that  there  seems  to  be  very 
little  left  of  it,  unless  it  be  in  cases  of  powers  of  attorney  required 
to  be  under  seal,  and  warrants  of  attorney  to  appear  and  confess 
judgment  in  court.  See  Freeman's  note  to  Craig  v.  Van  Bebber, 
18  Am.  St.  Rep.  629  (s.  c,  100  Mo.  584,  13  S.  W.  906) ;  Schouler, 
Dom.  Rel.  §  406;  Ewell's  Lead.  Cas.  44,  45,  and  note;  Bish.  Cont. 
§  930;  Mete.  Cont.  (2d  Ed.)  48;  Whitney  v.  Dutch,  14  Mass.  457- 
463,  7  Am.  Dec.  229;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119-131,  31 
Am.  Dec.  285. 

Hence,  notwithstanding  numerous  general  statements  in  the 
books  to  the  contrary,  we  feel  at  liberty  to  hold,  in  accordance 
with  what  we  deem  sound  principle,  that  the  power  of  attorney 
from  plaintiff  to  Dorr,  and  the  deed  to  Brown  under  that  power, 
were  not  absolutely  void  because  of  plaintiff's  infancy,  but  merely 
voidable,  and  that  they  were  ratified  by  him  after  attaining  his 
majority.     *     *     *    Judgment  affirmed. 


GRAUMAN,  MARX  &  CLINE  CO.  v.  KRIENITZ. 

(Supreme  Court  of  Wisconsin,  1910.     142  Wis.  556,  126  N.   W.  50.) 

Action  by  the  Grauman,  Marx  &  Cline  Company  against  Harry 
W.  Krienitz,  impleaded,  etc.  From  an  order  denying  application 
to  vacate  a  default  judgment  against  defendant  Krienitz,  he  ap- 
peals. The  action  was  to  recover  on  a  promissory  note  upon  which 
appellant  was  an  accommodation  maker.  No  answer  was  served, 
and  judgment  by  default  was  taken  in  due  course.  Nothing  ap- 
peared of  record  indicating  that  appellant  was  a  minor.  Execution 
was  duly  issued  on  the  judgment  and  returned  unsatisfied.  Sev- 
eral months  after  judgment,  supplementary  proceedings  were  com- 
menced against  appellant,  whereupon  he  appeared  and  secured  ap- 
pointment of  a  guardian  ad  litem  to  represent  him  and  institute 
and  carry  on  due  proceedings  to  open  the  default  and  obtain  leave 
to  defend.  A  motion  was  duly  made  to  vacate  the  judgment.  Up- 
on such  motion  defendant  tendered  an  answer,  pleading  that  he 
signed  the  note  as  an  accommodation  maker,  only,  and  that  he 
was  a  minor  at  the  time  of  so  signing  and  still  was  such. 


252  INFANTS 

The  motion  was  supported  by  affidavits  on  defendant's  behalf 
that  he,  at  first,  became  a  guarantor  for  his  codefendant  at  the  re- 
quest of  her  husband;  that  later,  when  the  indebtedness  incurred 
on  the  faith  of  the  guaranty,  amounting  to  some  $472,  became  due, 
defendant  was  asked  by  plaintiff's  attorney  to  settle  therefor;  that 
defendant  then  claimed  he  was  not  liable  because  he  was  a  minor; 
that,  as  a  result  of  some  negotiations,  the  claim  was  settled  by 
the  note  in  suit,  signed  by  defendant  as  an  accommodation  maker 
and  a  personal  note  of  the  principal  debtor  for  the  balance. 

The  affidavits  tended  strongly  to  show  that  the  settlement  was 
made,  and  guaranty  surrendered  to  defendant  on  the  faith  of  his 
representation,  by  conduct,  or  words  that  he  had  arrived  at  the  age 
of  21  years.  Whether  he  expressly  so  represented  was  disputed, 
the  preponderance  of  proof  being  in  the  negative.  There  was  a 
conflict  as  to  whether  defendant  represented  himself  to  be  of  age 
when  the  guaranty  was  signed,  but  the  preponderance  of  proof  was 
in  the  negative.  The  affidavits  showed  that  plaintiff  supposed, 
and  had  reasonable  ground  to  suppose,  defendant  was  of  age  when 
he  signed  the  guaranty.  No  benefits  whatever  came  to  defend- 
ant, at  any  time,  for  signing  either  guaranty  or  note.'^ 

Marshall,  J.  The  situation,  in  brief,  stating  it  as  favorably 
for  respondent  as  the  moving  papers  will  reasonably  permit  of, 
is  this:  Respondent  and  its  agent  believed,  as  above  indicated, 
that  when  appellant  signed  the  guaranty,  he  was  of  age,  and,  so 
believing,  accepted  him  as  security  for  payment  of  the  indebtedness 
afterwards  incurred.  It  did  not,  at  the  time  the  note  was  given, 
concede  that  he  was  not  liable  on  the  guaranty.  When  the  note 
was  signed  respondent's  agent  believed  that,  if  appellant  were  not 
of  age  in  the  first  instance  he  had  arrived  at  his  majority  in  the 
meantime.  Respondent  in  the  last  instance,  as  in  the  first,  was 
led  to  do  what  it  did,  by  appellant,  either  by  express  declaration 
or  otherwise,  suggesting  that  he  was  of  age  and,  manifestly,  for 
the  purpose  of  inducing  the  former  to  so  believe.  Respondent  re- 
lied upon  such  belief  in  all  that  it  did  to  enforce  collection  of  the 
claim  up  to  the  time  appellant  claimed,  in  the  supplementary  pro- 
ceeding, that  he  was  still  in  his  minority.  It  incurred  danger  of 
loss  by  selling  goods  on  the  faith  of  the  guaranty  and  incurred  loss 
to  a  considerable  amount  in  reliance  upon  the  note,  if  he  shall  be 
heard,  successfully,  to  claim  he  was  a  minor  when  he  signed  the 
paper  and  when  he  petitioned  for  leave  to  defend  against  the  same 
notwithstanding  the  judgment.  If  he  were  an  adult  his  laches  after 
service  ot  the  summons  would  justify  the  refusal  to  grant  relief. 
An  application  to  set  aside  a  default,  in  a  case  of  this  sort,  not- 
withstanding the  minority  of  appellant,  is  addressed  to  the  sound 
discretion  of  the  court,  but  such  discretion  must  be  guided  by  the 

'  Ttie  statement  of  facts  is  rewritten. 


CONTRACTS  OF   INFANTS  253 

settled  policy  of  the  law,  that  a  person  under  disability  is  entitled 
to  reasonable  opportunity  to  be  heard  in  court  by  a  qualified  repre- 
sentative during  his  disability,  or  by  himself  after  the  disability 
shall  have  been  removed.  Such  exceptions  as  there  are  to  such 
policy  are  so  rare  that  the  rule  is  well  nigh  universal.  So,  whether 
the  trial  court  failed  to  exercise  its  discretion,  in  this  instance,  ei- 
ther because  of  misconception,  or  abused  it  by  a  too  severe  an 
application,  of  the  law,  or  by  misconceiving  the  effect  of  the  facts, 
must  be  answered  from  the  standpoint  of  the  well-settled  policy 
referred  to. 

That  a  minor  defendant  should  be  represented  by  a  guardian  ad 
litem,  is  too  familiar  to  require  to  be  more  than  stated.  It  is  laid 
down  in  the  elementary  works  thus :  "It  is  an  almost  universal 
rule  that  where  an  infant  is  a  defendant  a  guardian  ad  litem  must 
be  appointed  for  him  to  conduct  the  defense.  The  reason  of  this 
rule  is  plain,  for  it  is  evident  that  the  privileges  of  an  infant  with 
regard  to  contracts  and  other  transactions  would  be  of  slight  util- 
ity if  he  were  liable  to  be  dragged  into  court  and  exposed  there, 
unprotected  in  his  ignorance,  to  contend  with  learning  and  expe- 
rience. It  is  to  protect  him  against  such  danger  that  the  law  as- 
signs him  a  guardian  in  the  suit."    Ency.  P.  &  P.  618. 

Going  back  to  the  guaranty  on  the  note,  it  is  conceded,  as  the 
fact  is,  that  the  contract  of  a  minor,  other  than  for  necessaries,  is 
either  void  or  voidable  at  his  option,  exercised  within  a  reasonable 
time  after  his  coming  of  age.  Such  a  contract,  not  for  necessa- 
ries, is,  as  a  rule,  voidable  by  the  minor  at  his  option,  reasonably 
exercised,  upon  his  coming  of  age  and  restoring  the  former  situa- 
tion as  far  as  he  is  reasonably  capable  of  doing  so.  There  is  an 
exception  to  that,  generally  recognized  by  the  courts,  including 
our  own,  of  which  Knaggs  v.  Green,  48  Wis.  601,  4  N.  W.  760,  33 
Am.  Rep.  838,  and  Thormaehlen  v.  Kaeppel,  86  Wis.  378,  56  N. 
W.  1089,  are  illustrations.  That  is  this,  a  minor  may,  in  making  a 
contract  beneficial  to  himself,  under  some  circumstances,  preclude 
himself,  by  equitable  estoppel,  from  subsequently  avoiding  it  on 
the  ground  of  his  infancy.  The  basic  circumstance  rendering  that 
applicable  is  actual  fraud;  express  representation  of  capacity  to 
contract,  inducing  the  adverse  party  to  enter  into  the  agreement. 
Many  illustrative  cases  are  cited  in  the  brief  of  counsel  for  re- 
spondent. The  following  are  a  few  of  them,  and  others :  Hayes 
V.  Parker,  41  N.  J.  Eq.  630,  7  Atl.  511;  Commander  v.  Brazil,  88 
Miss.  668,  41  South.  497,  9  L.  R.  A.  (N.  S.)  1117;  Ostrander  v. 
Quinn,  84  Miss.  230,  36  South.  257,  105  Am.  St.  Rep.  426;  Whit- 
tington  V.  W^right,  9  Ga.  23 ;  Sanger  v.  Hibbard,  2  Ind.  T.  547,  53 
S.  W.  330 ;  Steed  v.  Petty,  65  Tex.  490 ;  Williamson  v.  Jones,  43 
W.  Va.  562,  27  S.  E.  411,  38  L.  R.  A.  694,  64  Am.  St.  Rep.  891; 
Harmon  v.  Smith  (C.  C.)  38  Fed.  482. 


254  INFANTS 

An  examination  of  the  cited  cases  will  demonstrate  that  the  rule 
that  an  infant  may  bind  himself  by  his  actual  fraud,  but  not  by 
mere  conduct  or  silence  when  he  ought  to  speak,  is  very  guarded. 
It  forms  an  exception  to  the  one  that  an  infant  or  other  person 
under  disability  cannot  bind  him  or  herself  by  estoppel.  It  is  con- 
fined to  cases  where  the  infant,  though  under  legal  discretion,  is 
in  fact  developed  to  the  condition  of  actual  discretion.  It  is  fur- 
ther confined  to  cases  of  actual  fraud  and  where  the  contract  or 
transaction  is  beneficial  to  the  minor.  The  rule  being  purely  of 
equitable  nature,  it  may  be  that,  in  a  case  of  great  hardship  to  the 
adverse  party  and  substantially  the  same  discretion  on  the  part 
of  the  minor  as  if  he  were  of  age,  the  equity  of  the  law  will  stand 
in  the  way  of  the  latter  to  prevent  such  injury  by  closing  the  judi- 
cial ear  to  his  appeal  for  assistance  to  avoid  his  obligation.  But 
the  decided  cases  do  not  furnish  illustrations  of  such  extension. 
However,  the  precedents  would  not  limit  the  power  of  the  court  to 
extend  the  principles  of  equity  where  necessary  to  effect  justice. 

This  court  recognized  the  general  rule  in  Thormaehlen  v.  Kaep- 
pel,  supra,  in  these  words:  "We  suppose,  of  course,  that  a  court 
of  equity  would  refuse  to  relieve  an  infant  of  his  contract  if  his 
own  fraud  induced  the  other  party  to  enter  into  it." 

And  further,  in  effect,  but  if  the  minor  merely  fails  to  impart  in- 
formation of  his  age,  unasked,  there  being  no  misrepresentation  of 
fact  and  no  artifice  employed  to  mislead  the  other  party,  he  is  not 
guilty  of  that  species  of  fraud  which  will  estop  him  from  pleading 
his  minority  to  avoid  the  contract.  The  court  had  no  need  at  that 
point,  to  deal  with  the  other  feature  essential  to  create  the  estop- 
pel, viz.,  that  the  contract  must  be  beneficial  to  the  minor.  So  one 
might  be  misled  by  reading  the  court's  observation,  which  was  not 
so  guarded  as  to  suggest  such  essential. 

Enough  has  been  said  to  demonstrate  that  a  minor  cannot,  un- 
less in  some  extreme  cases  of  which  this  is  not  a  type,  even  by  ac- 
tual fraud,  estop  himself  from  pleading  his  minority  to  avoid  a  con- 
tract which  is  not  beneficial  to  him ;  as  in  case  of  his  becoming  a 
mere  surety  or  accommodation  maker  of  a  promissory  note. 

The  element  of  actual  discretion  on  the  part  of  the  minor,  char- 
acterized the  instant  transaction,  but  not  that  of  beneficial  nature 
to  the  minor,  nor  such  extreme  hardship  to  the  other  party  as  to 
warrant  the  doctrine  of  estoppel  being  applied.  The  learned  trial 
court,  quite  likely,  was  misled  by  the  general  language  in  Thor- 
maehlen V.  Kaeppel,  supra,  and  by  overlooking  the  closeness  with 
which  the  doctrine  that  a  minor  may  estop  himself  by  his  fraud 
from  asserting  his  infancy  to  avoid  his  contract,  is  fenced  about: 
(1st)  By  necessity  for  actual  discretion;  (2d)  necessity  for  actual 
fraud;  (3d)  necessity  for  beneficial  nature  of  the  transaction  to 
the  minor.     Had  these  essentials  been  appreciated  fully,  the  ap- 


CONTRACTS  OP   INFANTS 


255 


plication  for  leave  to  defend  against  respondent's  claim,  notwith- 
standing the  default,  would  probably  have  been  granted. 

True,  a  judgment  rendered  against  a  minor  where  he  is  not  rep- 
resented by  a  guardian  ad  litem,  is  not  void.  Such  representation 
is  not  jurisdictional.  Notwithstanding  absence  of  it  the  judgment 
is  proof  against  collateral  attack.  It  can  only  be  avoided  by  appeal 
for  error,  where  the  minority  appears  of  record,  or  otherwise  by 
motion  or  other  direct  proceeding  in  the  action  seasonably  resorted 
to.  This,  of  course,  contemplates  jurisdiction  obtained  by  proper 
service  of  the  summons  as  required  by  law.  There  was  such  serv- 
ice in  this  case.  While  the  mere  neglect,  regardless  of  the  cause 
of  it,  the  court  having  jurisdiction  to  have  a  minor  defendant  rep- 
resented by  a  guardian  ad  litem,  is  not  jurisdictional,  the  rule  in- 
dicated obtains  by  the  great  weight  of,  though  not  the  universal 
authority.  1  Black  on  Judgments,  §  193,  note  34.  The  federal  Su- 
preme Court  is  in  the  former  class.  O'Hara  v.  McConnell,  93  U. 
S.  150,  23  L.  Ed.  840.  Some  suggestions  in  authorities  the  other 
way  are  regarded  as  rather  inconsequential. 

So  appellant  took  the  proper  course  to  avoid  the  efifect  of  the 
judgment.  He  could  not  have  reached  the  infirmity  by  appeal, 
since  it  does  not  appear  of  record.  There  is  no  question  but  what 
his  motion  was  seasonably  made  as  to  the  mere  element  of  time. 
There  was  no  element  of  actual  fraud  which  stood  in  the  way. 
Mere  acquiescence,  while  under  disability,  was  not  sufficient  to  jus- 
tify denying  the  motion.  True,  the  court  might,  for  sufficient  eq- 
uitable considerations  in  such  a  case,  deny  relief.  But  the  policy 
of  the  law  to  afford  a  minor  a  day  in  court,  properly  represented 
by  guardian  ad  litem,  or  after  removal  of  the  disability  to  be  heard, 
is  so  general  that  something  of  an  extraordinary  character  would  be 
required  to  create  an  exception ;  something  far  more  serious  than 
such  mere  inconvenience  and  cost  of  litigation  to  the  adverse  party, 
as  in  this  case. 

It  is  not  to  be  understood  that  judgments  characterized  by  irreg- 
ularity, as  in  this  case,  can  always  be  set  aside  either  during  dis- 
ability or  after  it  has  been  removed.  In  case,  notwithstanding  the 
irregularity,  the  minor  suffered  no  substantial  injustice,  relief  is 
not,  necessarily,  grantable.  That,  of  course,  would  not  include  a 
case  like  this  where  there  was  no  enforceable  liability  in  the  first 
instance. 

It  follows  that  the  order  appealed  from  must  be  reversed,  and 
the  cause  remanded  with  directions  to  grant  appellant's  motion. 


256  INFANT3 

BEICKLER  V.  GUENTHER. 

(Supreme  Court  of  Iowa,  1903.     121   Iowa,  419,  96  N.  W.  895.) 

The  plaintiff,  who  was  born  in  December,  1880,  purchased  four 
lots  of  defendant  May  1,  1899,  for  which  he  agreed  to  pay  $650 — ■ 
$42  in  cash  and  $7  per  month  thereafter — deferred  payments  to 
bear  interest  at  the  rate  of  6  per  cent,  per  annum.  Six  payments 
were  made,  and  he  then  notified  defendant  that  he  would  pay  no 
more.  The  defendant  offered  to  return  the  $84  paid,  with  interest, 
which  plaintiff  refused.  They  then  agreed  about  March,  1900,  that 
for  a  team  of  horses,  which  was  delivered  to  plaintiff,  he  would 
surrender  the  contract,  which  he  did,  and  it  was  destroyed.  On 
May  3,  1901,  the  plaintiff  served  written  notice  upon  defendant  that 
he  elected  to  rescind  the  agreement  by  which  he  surrendered  the 
contract  of  purchase,  and  tendered  the  return  of  the  team.  As  de- 
fendant failed  to  signify  his  acceptance,  and  had  transferred  the  lots 
to  a  third  party,  this  action  to  recover  their  value  was  begun. 
Trial  to  jury  resulted  in  a  verdict  for  plaintiff,  upon  which  judg- 
ment was  entered.    The  defendant  appeals. 

Ladd,  J.^  The  plaintiff  was  but  19  years  old  when  he  bought 
of  defendant  and  became  owner  of  the  lots.  Within  a  year,  and 
when  still  a  minor,  he  exchanged  them  for  a  team  of  horses.  This 
trade  he  elected  to  rescind  May  3,  1901,  seven  months  prior  to  his 
majority,  and  tendered  the  horses  back  to  the  defendant.  The 
law  deals  tenderly  with  a  minor  in  permitting  him  to  disaffirm  his 
contracts,  save  for  necessaries,  "within  a  reasonable  time  after  he 
attains  his  majority,  and  restores  to  the  other  party  all  money  or 
property  received  by  him  by  virtue  of  the  contract  and  remaining 
within  his  control  at  any  time  after  attaining  his  majority,"  except 
when  the  other  party  has  been  misled  by  the  minor's  misrepresen- 
tations as  to  age,  or  from  his  having  engaged  in  business  as  an 
adult.  Sections  3189,  3190,  Code;  Green  v.  Wilding,  59  Iowa,  679, 
13  N.  W.  761,  44  Am.  Rep.  696.  The  plaintiff's  occupation  was  that 
of  a  farm  laborer  at  a  stipulated  price  per  year.  Such  employment 
is  not  peculiar  to  adults,  and  furnished  no  ground  for  the  supposi- 
tion that  he  was  engaged  in  business  as  such.  Aside  from  this, 
he  had  purchased  these  lots,  and  made  payments  thereon.  These 
transactions  were  undoubtedly  such  as  are  ordinarily  performed 
by  persons  of  maturity.    As  such  they  were  admissible  in  evidence. 

But  to  "engage  in  business"  is  uniformly  construed  as  signifying 
to  follow  that  employment  or  occupation  which  occupied  the  time, 
attention,  and  labor  for  the  purpose  of  a  livelihood  or  profit.  Abel 
V.  State,  90  Ala.  631,  8  South.  760;  Shryock  v.  Latimer,  57  Tex.  674; 
Hickey  v.  Thompson,  52  Ark.  234,  12  S.  W.  475.    See  authorities 

8  Part  of  the  opinion  is  omitted. 


CONTRACTS  OF   INFANTS  257 

collected  in  6  Cyc.  259.  The  definition  of  "business"  given  by 
Webster  is  quite  generally  accepted:  "That  which  engages  the 
time,  attention,  or  labor  of  any  one  as  his  principal  concern  or  in- 
terest, whether  for  a  longer  or  shorter  time;  constant  employ- 
ment; regular  occupation."  The  kind  of  employment  is  imma- 
terial under  our  statute.  It  may  be  any  particular  occupation  in 
which  the  minor  engages  as  an  employment.  The  transaction  of 
business  occasionally  would  be  in  one  sense  "engaging  in  business," 
but  the  statute  evidently  contemplates  doing  so  as  a  regular  occu- 
pation or  employment.  See  Stephenson  v.  Primrose,  8  Port.  (Ala.) 
155,  33  Am.  Dec.  281.  It  is  hardly  necessary  to  add  that  the  evi- 
dence falls  short  of  showing  conclusively,  as  contended  by  appel- 
lant, that  plaintiff  had  engaged  in  business  as  an  adult. 

The  plaintiff  offered  in  writing  to  return  the  team.  This,  in  the 
absence  of  an  acceptance,  was  equivalent  to  the  actual  tender  of 
the  property.  But  he  disposed  of  the  horses  six  weeks  later,  and  it 
is  said  that,  because  of  not  keeping  the  tender  good,  he  should  be 
defeated  in  this  action.  Disaffirmance  is  one  thing  and  restora- 
tion of  property  quite  another.  The  minor  may  disaffirm  before 
he  attains  the  age  of  21  years.  Childs  v.  Dobbins,  55  Iowa,  205, 
7  N.  W.  496.  He  is  only  required  by  the  statute  to  restore  the 
money  or  property  received  by  virtue  of  the  contract  "remaining 
within  his  control  at  any  time  after  attaining  his  majority."  As 
stated,  he  ceased  to  be  the  owner  of  the  team  before  becoming  of 
age,  and  thereafter  was  not  in  control  of  anything  received  from 
defendant.  There  was  then  nothing  in  his  keeping  to  restore. 
*     *     *    Judgment  affirmed. 


IV.  Same — Liability  for  Necessaries  • 


KILGORE  V.  RICH. 

(Supreme  Judicial  Court  of  Maine,  1891.    83  Me.  305,  22  Atl.  176,  12  L.  R.  A. 

859,  23  Am.  St.  Rep.  780.) 

This  was  an  action  of  assumpsit  on  an  account  annexed.  The 
defendant  pleaded  the  general  issue,  with  a  brief  statement  aver- 
ring his  infancy.    The  case  is  stated  in  the  opinion. 

Peters,  C.  J.  The  jury  found  that  at  the  request  of  the  defend- 
ant, then  an  infant,  the  plaintiff  paid  for  him  a  board-bill  which  he 

9  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
200-203. 

COOLEY  P.&  D.Rel.— 17 


258  INFANTS 

had  previously  contracted  while  attending  school.  It  was  ruled 
at  the  trial  that  the  expense  of  an  infant's  board  while  attending 
school  might  be  regarded  as  necessaries.  The  correctness  of  this 
ruling  is  perhaps  unquestioned.  At  all  events,  Coke's  enumeration 
of  the  kinds  of  necessaries  has  always  been  accepted  as  true  doc- 
trine, which  are  these:  "Necessary  meat,  drink,  apparel;  neces- 
sary physic,  and  such  other  necessaries,  and  likewise  his  good 
teaching  or  instruction,  whereby  he  may  profit  himself  afterwards." 

It  was  also  ruled  at  the  trial  that  an  infant,  being  liable  to  one 
person  for  such  a  bill,  could  make  himself  liable  to  another  who 
should  pay  such  bill  for  him  at  his  request;  the  liability  to  such 
other  person  not  to  be  measured  by  the  amount  actually  paid,  but 
limited,  irrespective  of  the  contract  price,  to  such  sum  as  would 
be  a  reasonable  compensation  for  the  board.  This  ruling  does  not 
appear  to  infringe  against  any  legal  principle,  and  an  examination 
of  the  case  satisfies  us  that  it  is  well  supported  by  the  authorities. 

The  infant's  liability  is  in  no  way  enlarged  by  owing  the  debt 
to  one  rather  than  to  another.  The  rule  lends  no  temptation  to 
create  a  debt  as  it  is  already  created.  The  right  to  transfer  the  lia- 
bility from  one  to  another  might  be  a  great  convenience  to  a  minor. 
One  creditor  might  be  unable  or  unwilling  to  wait  for  payment, 
while  a  friend  and  acquaintance,  as  a  substituted  creditor,  might 
be  accommodating  in  that  respect.  It  v/ould  give  a  self-supporting 
minor  more  facilities  for  support.  We  have  not,  in  our  examina- 
tion of  authorities,  noticed  any  case  that  opposes  the  principle.  In 
Clarke  v.  Leslie,  5  Esp.  28,  it  was  held  that  an  infant  who  was 
threatened  with  arrest  upon  a  process  sued  out  against  him  on  a 
debt  for  necessaries  would  be  liable  to  a  person  who,  at  his  re- 
quest, advanced  money  to  release  him.  In  that  case  there  was 
legal  pressure,  but  in  many  instances  moral  pressure  would  be 
great. 

Swift  V.  Bennett,  10  Cush.  (Mass.)  436,  is  a  case  where  an  in- 
fant bought  an  outfit  for  a  whaling  voyage,  drawing  for  the  amount 
of  the  bill  on  the  plaintiffs,  who  accepted  the  bill,  and  paid  it  when 
it  became  due.  They  were  allowed  to  collect  of  the  infant  what 
the  goods  were  reasonably  worth  to  him,  in  an  action  for  money 
paid  on  his  account.  So  in  Conn  v.  Coburn,  7  N.  H.  368,  26  Am. 
Dec.  746,  a  person  who  signed  an  infant's  note  given  for  necessa- 
ries, as  a  surety,  was  allowed,  after  payment  of  the  note,  to  recover 
the  amount  paid,  not  upon  the  note,  but  as  money  paid  for  the 
benefit  of  the  infant.  Randall  v.  Sweet,  1  Denio  (N.  Y.)  460,  is 
precisely  in  point  in  the  present  case. 

The  defendant  relies  on  the  rule  generally  prevailing  in  the  cases 
that  money  is  not  a  necessary,  though  lent  to  an  infant  who  after- 
wards purchases  necessaries  with  it.  "But,"  says  Mr.  Bishop,  "one 
who  pays  money  at  his   [infant's]   request  to  a  third  person  for 


CONTRACTS  OF   INFANTS  259 

necessaries  can  recover  it."  Bish.  Cont.  §  914.  The  difference  is 
between  lending  or  paying.  Mr.  Wharton  (Whart.  Cont.  §  72) 
finds  the  doctrine  adopted  in  late  American  cases,  that  a  person 
who  lends  money  to  an  infant  to  purchase  "specific"  necessaries 
stands  in  the  position  of  the  tradesman  who  furnishes  the  neces- 
saries. 

In  the  case  at  bar  the  plaintiff  could  have  taken  an  assignment  of 
the  claim,  and  been  entitled  to  recover  it;  and  there  really  is  no 
good  reason  to  defeat  his  claim  as  it  is  here  presented.  Exceptions 
overruled. 


MAULDIN  V.  SOUTHERN  SHORTHAND  &  BUSINESS  UNI- 
VERSITY. 

(Court  of  Appeals  of  Georgia,  1908.    3  Ga.  App.  800,  60  S.  E.  358.) 

Powell,  J.  Dora  Mauldin,  of  Tunnell  Hill,  Ga.,  a  17  year  old 
girl,  an  orphan,  whose  whole  estate  consisted  of  about  $75,  came 
to  Atlanta,  and  over  the  objection  of  her  guardian  made  a  con- 
tract with  the  defendant  to  take  a  five  months'  course  in  stenog- 
raphy for  $35,  which  at  her  request  her  guardian  paid  out  of  her 
moneys  in  his  hands.  Being  disappointed  in  her  expectations  of 
being  lodged  and  cared  for  by  relatives  while  in  Atlanta,  she  within 
about  five  days,  notified  the  president  of  the  business  school  of 
her  inability  to  take  the  course  and  requested  a  return  of  her  tui- 
tion; and  this  he  refused.  She  brought  suit.  The  defendant  set 
up  that  her  contract  provided  that  the  tuition  should  not  be  re- 
funded except  in  certain  providential  contingencies;  and  that  this 
contract  was  for  necessaries  and  therefore  binding  on  her.  A  jury 
on  the  first  trial  having  found  in  favor  of  the  defendant,  the  Su- 
preme Court  granted  a  new  trial  because  it  did  not  affirmatively 
appear  that  the  tuition  in  stenography  was  a  necessary  thing  for 
her  station  in  life.  See  Mauldin  v.  Southern  Shorthand  University, 
126  Ga.  681,  55  S.  E.  922.  On  the  second  trial  there  was  a  verdict 
for  the  plaintiff,  but,  on  a  certiorari  containing  substantially  the 
general  grounds,  the  judge  of  the  superior  court  ordered  a  new 
trial;   and  to  this  the  plaintiff  brings  error. 

In  our  judgment  the  determination  whether  the  course  in  short- 
hand would  have  been  such  a  necessary  thing  as  to  charge  the 
plaintiff  with  a  liability  therefor  if  she  had  taken  it  is  not  in  the 
case.  The  right  to  recover  from  an  infant  for  necessaries  does  not 
arise  out  of  the  contract  between  the  parties,  but  from  a  quasi 
contractual  relation  arising  by  operation  of  law.  Keener  on  Quasi 
Contracts,  20.  The  quality  of  justice  in  the  law,  not  the  quality 
of  efficacy  in  the  infant's  agreement,  is  the  basis  of  the  right  of 
the  person  who  has  furnished  the  necessaries  to  hold  the  infant 


260  INFANTS 

bound  therefor.  A  corollary  to  the  foregoing  principle  is  the  well- 
recognized  rule  that  an  infant  may  repudiate  an  executory  contract 
for  necessaries. 

The  case  of  Jones  v.  Valentines'  School  of  Telegraphy,  122  Wis. 
318,  99  N.  W.  1043,  is  absolutely  identical  in  every  essential  fact 
and  feature  with  the  case  at  bar.  The  plaintiff  there,  an  infant, 
paid  for  a  scholarship  in  a  business  school,  but  afterward,  conclud- 
ing not  to  enjoy  the  privilege,  demanded  a  return  of  the  money, 
which  was  refused,  whereupon  he  sued  for  it.  The  court  says :  "It 
is  elementary  law  that  an  infant  is  bound  by  implied  contract  to 
pay  reasonably  for  necessaries  furnished  him.  The  limitations  of 
the  rule  are  plainly  indicated  by  the  statement  of  it.  In  order  that 
the  infant  may  be  bound,  all  the  circumstances  must  exist  essential 
to  raise  a  promise  by  implication  of  law.  There  must  have  been 
furnished  him  property  or  something  of  value,  being  such  as  to 
administer  to  his  necessities.  That  obviously  excludes  the  idea  of 
an  infant's  being  liable  upon  an  executory  contract  to  furnish  him 
necessaries,  as  has  been  uniformly  held.  Gregory  v.  Lee,  64  Conn. 
407,  30  Atl.  53,  25  L.  R.  A.  618.  No  liability  can  be  created  by  an 
infant  for  necessaries  by  express  contract.  His  liability  therefor 
is  wholly  a  creation  of  law.  1  Parsons  on  Contracts  (9th  Ed.) 
314,  note  1.  In  view  of  the  foregoing,  we  need  not  stop  to  inquire 
whether  an  infant  may  bind  himself  by  implied  contract  to  pay 
for  educational  training  of  the  kind  promised  by  appellant,  under 
the  rule  above  stated,  since  there  is  no  claim  that  such  training 
was  bestowed  upon  respondent." 

In  Gregory  v.  Lee,  64  Conn.  407,  30  Atl.  53,  25  L.  R.  A.  618,  the 
infant,  being  a  student  of  Yale  College,  made  an  engagement  to 
take  lodging  from  the  plaintiff  for  a  year.  After  holding  that  the 
infant's  liability  for  necessaries  arises  by  operation  of  law  and  not 
from  any  contract  he  may  have  attempted  to  make,  and  that,  there- 
fore, no  executory  contract  is  enforceable  against  him,  the  court 
applied  the  law  to  the  case,  deciding  that  "an  infant  may  disaffirro 
his  contract  for  the  lease  of  a  room  suitable  to  his  needs  and  situa- 
tion in  life,  and  is  not  liable  for  the  rent  of  the  room  alleged  to 
have  accrued  after  such  disaffirmance  and  after  he  has  ceased  to 
occupy  it,  although  such  period  was  within  the  period  covered  by 
his  contract."  See,  also,  Thomas  v.  Dike,  11  Vt.  273,  34  Am.  Dec. 
690. 

The  case  at  bar  has  therefore  been  contested  over  the  immaterial 
question  whether  tuition  in  shorthand  would  have  been  necessary 
for  the  girl  in  her  station  of  life;  for  the  principle  of  law  above 
stated  concludes  the  proposition  that  she  should  not  be  held  bound 
on  the  contract  in  either  event. 

There  is  a  suggestion  in  the  argument  that  the  plaintiff's  right 
to  recover  back  the  money  may  be  defeated  on  the  theory  that  she 


CONTRACTS  OP  INFANTS  261 

did  not  pay  the  defendant  the  money,  but  that  her  guardian  paid 
it,  making  the  contract  his  contract.  This  position  is  likewise  un- 
tenable. It  is  a  well-recognized  rule  that  a  minor  may  recover 
from  whomsoever  knowingly  received  any  of  his  money  paid  out 
by  his  guardian  without  lawful  authority.  This  question  is  dis- 
cussed in  the  case  of  Howard  v.  Cassels,  105  Ga.  412,  31  S.  E.  562, 
70  Am.  St.  Rep.  44.  It  requires  the  approval  of  the  ordinary  to 
legalize  any  encroachment  upon  the  corpus  of  the  ward's  estate 
by  a  guardian  for  education  or  maintenance.  Civ.  Code  1895,  § 
2541.     No  such  approval  is  shown. 

The  verdict  in  the  plaintiff's  favor  was  demanded,  and  the  court 
erred  in  sustaining  the  certiorari.    Judgment  reversed.^" 


PHILLIPS  V.  LLOYD  et  at. 
(Supreme  Court  of  Rhode  Island,  1892.    18  R.  I.  99,  25  Atl.  909.) 

Action  by  Thomas  Phillips  &  Co.  against  Herbert  C.  Lloyd  and 
wife  and  the  latter's  mother  to  recover  the  price  of  materials  fur- 
nished and  labor  done  in  repairing  a  house  owned  by  the  defend- 
ants. The  mother  of  Mrs.  Lloyd  made  no  defense.  There  was  a 
judgment  of  nonsuit  as  to  defendants  Lloyd  and  wife,  and  plain- 
tiffs filed  a  petition  for  a  new  trial. 

Mrs.  Lloyd  owned  an  undivided  half  interest  in  the  house  re- 
paired, as  the  heir  of  her  deceased  father.  The  materials  were  fur- 
nished and  work  done  prior  to  her  marriage,  and  while  she  was  an 
infant,  at  the  request  of  her  mother. 

Per  Curiam.  We  do  not  think  the  court  below  erred  in  granting 
a  nonsuit.  The  ground  of  nonsuit  was  that  the  repairs  made  by 
the  plaintiffs  on  the  dwelling  house  of  the  defendant  Mrs.  Lloyd 
were  not  "necessaries,"  within  the  technical  sense  of  the  word, 
which  embraces  only  such  things  as  are  necessary  for  the  support 
or  comfort  of  the  minor,  or  for  his  personal  use,  taking  into  account 
his  condition  and  circumstances  in  life.  Price  v.  Sanders,  60  Ind. 
310,  314.  Repairs  on  real  estate  are  clearly  not  within  this  defini- 
tion, and  it  has  been  accordingly  held  that  an  infant  is  not  liable 
for  such  repairs,  either  on  his  own  contract  or  on  the  contract  of 
his  guardian  or  parent,  even  though,  as  in  the  present  case,  the 
repairs  were  necessary  to  prevent  immediate  and  serious  injury 
to  the  dwelling  house.  Tupper  v.  Caldwell,  12  Mete.  (Mass.)  559, 
46  Am.  Dec.  704.     And  see  West  v.  Gregg's  Adm'r,  1  Grant,  Cas. 

1 0  Compare  Middlebury  College  v.  Chandler,  16  Vt.  683,  42  Am.  Dec.  537 
(1844). 

Right  of  guardian  to  use  principal  of  ward's  estate  for  maintenance  of 
ward,  see  Duffy  v.  Williams,  ante,  p.  215. 


262  INFANTS 

(Pa.)  53;  Wallls  v.  Bardwell,  126  Mass.  366;  Schouler,  Dom.  Rel. 
§  412. 

Plaintiffs'  petition  for  new  trial  denied  and  dismissed.** 


V.  Same — Ratification  and  Disaffirmance  ** 


WULLER  V.  CHUSE  GROCERY  CO. 

(Supreme  Court  of  Illinois,  1909.    241  111.  398,  89  N.  E.  796,  28  L.  R.  A.  [N.  S.] 

128,  132  Am.  St.  Rep.  216.) 

Suit  by  Joseph  P.  Wuller  against  the  Chuse  Grocery  Company. 
From  a  decree  of  the  Appellate  Court,  affirming  a  decree  for  plain- 
tiff, defendant  appeals. 

Dunn,  J.^*  The  appellee  filed  a  bill  for  relief  against  the  appel- 
lant, and  the  circuit  court  decreed  the  payment  of  $1,500  by  the  ap- 
pellant to  the  appellee  and  the  cancellation  of  a  certificate  for  15 
shares  of  the  capital  stock  of  appellant  held  by  the  appellee.  This 
decree  having  been  affirmed  by  the  Appellate  Court,  an  appeal  is 
prosecuted  to  reverse  the  judgment  of  the  latter  court. 

The  appellee  was  a  minor  when  the  bill  was  filed  and  when  the 
cause  was  heard.  In  Alay,  1905,  the  appellant  corporation  was  or- 
ganized to  carry  on  a  mercantile  business,  with  a  capital  stock  of 
$4,500,  of  which  the  appellee  subscribed  and  paid  for  15  shares  of 
$100  each.  He  acted  as  secretary  and  treasurer  of  the  corporation, 
and  was  a  salesman  and  bookkeeper  thereof  at  $12  a  week  during 
the  first  year,  and  at  $15  a  week  thereafter  until  after  he  began  this 
suit,  in  December,  1908.  Having  become  dissatisfied  with  the  con- 
duct of  the  business,  appellee  filed  a  bill  charging  mismanagement 
thereof,  repudiating,  on  account  of  his  minority,  his  contract  for 
said  stock,  and  refusing  to  be  bound  thereby,  offering  to  return 
the  certificate  for  said  stock,  and  praying  for  an  accounting,  the 
appointment  of  a  receiver,  and  general  relief. 

The  position  of  the  appellant  is  that  an  infant,  having  advanced 
money  upon  a  contract  voidable  because  of  his  infancy,  cannot  re-r 
scind  the  contract  and  recover  the  money,  and  that  he  cannot  elect 
to  avoid  the  contract  during  his  infancy.  The  contract  of  an  infant 
is,  in  general,  voidable  by  him,  and  gains  no  additional  force  from 
the  fact  that  he  is  engaged  in  business  for  himself  or  is  emanci- 
pated.   The  exercise  of  his  right  to  disaffirm  his  contract  may  op- 

11  Infant's  contract  with  an  attorney  for  services  in  securing  his  estate  or 
claim  as  a  contract  for  necessaries,  see  Crafts  v.  Carr,  24  R.  I.  397,  53  Atl 
275,  60  L.  R.  A.  128,  96  Am.  St.  Rep.  721  (1902). 

12  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d.  Ed.) 
{  204. 

18  Part  of  the  opinion  Is  omitted. 


CONTRACTS  OF   INFANTS  2G3 

erate  injuriously  and  unjustly  against  the  other  party;  but  the 
right  exists  for  the  protection  of  the  infant  against  his  own  im- 
providence, and  may  be  exercised  entirely  in  his  discretion.  The 
fact  that  the  contract  has  been  executed  is  immaterial.  There  is 
no  distinction  between  executed  and  executory  contracts,  so  far  as 
the  right  of  disaffirmance  is  concerned.     *     *     ♦ 

The  consideration,  or  such  part  of  it  as  remains  in  the  possession 
or  control  of  the  minor,  must  be  returned;  but  if  he  has  lost  or 
expended  it,  so  that  he  cannot  restore  it,  he  is  not  obliged  to  make 
restitution.  Craig  v.  Van  Bebber,  100  Mo.  584,  13  S.  W.  906,  18 
Am.  St.  Rep.  569;  Reynolds  v.  McCurry,  100  111.  356.  Contracts 
concerning  personal  property  and  executory  agreements  may  be 
avoided  by  the  infant,  either  during  or  after  his  minority.  Childs  v. 
Dobbins,  55  Iowa,  205,  7  N.  W.  496;  Chapin  v.  Shafer,  49  N.  Y. 
407;  Robinson  v.  Weeks,  supra  [56  Me.  102].  The  shares  of  capi- 
tal stock  of  a  corporation  are  personal  property,  the  same  as  prom- 
issory notes  or  bonds.  Cooper  v.  Corbin,  105  111.  224.  An  infant's 
purchase  of  such  stock  is  voidable,  and  he  may,  at  his  election, 
avoid  it,  and  recover  the  purchase  money.  Indianapolis  Chair  Mfg. 
Co.  V.  Wilcox,  59  Ind.  429;  White  v.  New  Bedford  Cotton  Waste 
Corporation,  178  Mass.  20,  59  N.  E.  642.  The  appellee,  having  of- 
fered to  return  the  stock  which  he  had  received  under  the  contract, 
was  entitled  to  the  return  of  the  purchase  money  he  had  paid. 

The  certificate  of  stock  held  by  the  appellee  was  merely  the 
evidence  of  his  rights  as  a  stockholder.  The  contract  by  which 
he  became  a  stockholder  having  been  avoided,  the  decree  properly 
provided  for  the  cancellation  of  the  certificate,  which  amounted, 
in  effect,  to  the  surrender  of  the  stock  by  appellee  and  its  restora- 
tion to  appellant.     The  judgment  is  affirmed. 


VI.  Same — Time  of  Avoidance  ^* 


SHROYER  V.  PITTENGER. 

(Appellate  Court  of  Indiana,  Division  No.  1,  1903.     31  Ind.  App.  158,  67  N. 

E.  475.) 

Suit  by  Flora  M.  Shroyer  against  John  A.  Pittenger  and  oth- 
ers. From  a  judgment  sustaining  a  demurrer  to  the  complaint, 
complainant  appeals. 

Robinson,  J.^^  Appellant's  complaint  avers  that  in  1884  Hannah 
Cline  owned  a  life  estate  in  certain  described  lands,  with  remainder 

1*  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §5 
205-207. 

IB  Part  of  the  opinion  is  omitted. 


264  INFANTS 

in  fee  in  appellant  and  two  others.  Hannah  Cline  died  in  1892. 
In  1894  and  1895  appellant,  by  purchase,  became  the  owner  of  the 
whole.  In  1884  appellant  was  a  minor  20  years  of  age,  a  married 
woman,  residing  with  her  husband  in  the  territory  of  Dakota,  and 
in  January  of  that  year  she  and  her  husband  executed  a  deed  to 
appellee,  conveying  to  him  the  undivided  one-third  in  fee  of  the 
land,  which  deed  was  duly  recorded.  The  deed  recites  a  considera- 
tion of  $400,  but  it  is  averred  she  received  no  consideration  what- 
ever, that  appellee  knew  of  her  minority,  and  that  she  received  no 
consideration  for  the  conveyance.  In  1885  appellant  and  her  chil- 
dren were  abandoned  by  the  husband,  and  she  returned  to  her 
mother,  Hannah  Cline,  then  residing  on  the  land,  and  immediately 
notified  appellee  that  she  was  a  minor  when  she  executed  the  deed, 
and  that  she  received  no  consideration  therefor,  and  that  she  would 
not  be  bound  by  the  same,  but  repudiated  and  disaffirmed  the 
deed,  and  repeatedly  thereafter  so  stated  and  asserted  to  him ;  that 
thereupon  appellee  acknowledged  that  he  knew  she  was  a  minor 
when  she  made  the  deed,  and  that  she  was  not  bound  thereby,  and 
that  she  had  the  right  to  avoid  the  deed,  but  that  appellee  had  paid 
the  husband  $400  therefor,  and  that  he  should  be  repaid  that  sum ; 
that  appellee  at  the  time  owned  land  adjoining,  upon  which  he  op- 
erated a  stone  quarry  near  the  dividing  line,  the  strata  of  stone  ex- 
tending continuously  from  one  tract  to  the  other,  and  which  was 
of  great  value  for  quarrying  for  market;  that  thereupon  appellant 
agreed  that  appellee  might  operate  the  quarry  on  the  lands  in 
question  until  he  had  been  repaid  the  $400,  and  that  he  would  not 
have  the  deed  recorded,  but  that  the  same  should  be  canceled  and 
destroyed ;  that,  pursuant  to  this  agreement,  appellee  extended  the 
quarry  onto  not  exceeding  one-half  acre  of  the  lands  in  question, 
and  removed  stone  therefrom  of  the  value  of  $3,000 ;  that  appellee 
has  never  had  possession  of  the  rest  of  the  land,  but  the  same  was 
in  the  possession  of  Hannah  Cline  until  her  death,  and  since  in  the 
possession  of  appellant;  that  appellee  has  wrongfully  placed  the 
deed  on  record,  and  claims  an  interest  in  the  land,  which  is  without 
right,  and  is  a  cloud  upon  appellant's  title;  that  appellee  contin- 
ues, without  right,  to  quarry  stone  from  the  land,  and  refuses  to 
account  to  appellant  for  the  value  thereof;  that  on  an  accounting 
there  is  due  appellant  $2,000 ;  that  appellant  ofifers  to  abide  by  any 
order  the  court  may  make  in  the  premises.  Prayer  for  an  account- 
ing, an  injunction  to  enjoin  the  further  operation  of  the  quarry, 
judgment  for  damages,  and  that  the  deed  be  declared  void  and  ap- 
pellant's title  quieted.  A  demurrer  to  the  complaint  was  sustained, 
and  on  that  ruling  rests  the  assignment  of  error. 

The' husband  did  not  join  in  the  conveyance,  but  it  does  not  ap- 
pear that  he  was  of  full  age.  Moreover,  it  is  averred  that  appellant 
received  no  consideration  for  the  sale,  so  that  it  was  not  necessary 


CONTRACTS  OF   INFANTS  265 

to  restore  the  consideration  before  disaffirming  the  sale,  as  pro- 
vided in  section  3364,  Burns'  Rev.  St.  1901.  See  Miles  v.  Linger- 
man,  24  Ind.  385. 

The  courts  of  this  state,  and  very  generally,  construe  infants' 
contracts  as  voidable,  and  not  void,  for  the  reason  that  it  is  for 
the  sole  advantage  of  the  infant  that  the  privilege  of  avoiding  a 
contract  is  conferred,  and  such  a  construction  more  often  promotes 
public  justice,  and  operates  more  advantageously  to  the  infant 
himself.  What  confusion  exists  on  the  subject  has  arisen  from  a 
careless  use  of  the  words  "void"  and  "voidable."  An  infant's  con- 
tract might  be  void  for  reasons  that  would  render  a  contract  of 
an  adult  void.  But  the  better  reasoning  supports  the  rule  that  no 
contract  of  an  infant  is  void  because  of  his  nonage,  but  all  such 
contracts  are  voidable  only,  except  contracts  for  necessaries,  and 
such  contracts  as  he  may  make  by  statutory  authority,  which  are 
binding.  See  Fetrow  v.  Wiseman,  40  Ind.  148;  Law  v.  Long,  41 
Ind.  586;  Sims  v.  Bardoner,  86  Ind.  87,  44  Am.  Rep.  263;  Bu- 
chanan V.  Hubbard,  119  Ind.  187,  21  N.  E.  538;  Losey  v.  Bond,  94 
Ind.  67;   Welch  v.  Bunce,  83  Ind.  382. 

An  infant's  conveyance  of  lands,  being  not  void,  but  voidable, 
cannot  be  avoided  or  disaffirmed  because  of  nonage,  merely,  until 
the  infant  reaches  majority;  and  no  right  of  action  because  of  in- 
fancy at  the  time  of  the  conveyance,  as  to  lands  conveyed,  exists 
until  the  conveyance  has  been  avoided  or  disaffirmed.  While  a 
conveyance  of  the  same  land  to  some  one  else  after  majority,  and 
in  disregard  of  the  former  deed,  is  a  disaffirmance  of  the  deed 
made  during  infancy,  yet  the  doctrine  that  the  act  of  disaffirmance 
must  be  by  instrument  of  equal  solemnity  with  the  instrument 
sought  to  be  avoided  no  longer  obtains.  Nor  do  we  understand  it 
to  be  the  rule  in  this  state,  as  claimed  by  counsel,  that  the  act  of 
disaffirmance  must  necessarily  be  in  writing,  and  served  upon  the 
grantee.  Such  an  act  would  be  a  disaffirmance,  but  not  exclusively 
so.  Disaffirmance  does  not  consist  wholly  of  some  act  done,  but 
is  a  matter  both  of  act  and  intention,  and  is  accomplished  where 
the  party,  after  full  age,  and  intending  to  disaffirm,  does  some  act 
of  positive  and  distinct  dissent,  inconsistent  with  the  continued 
validity  of  the  contract  made  during  infancy. 

The  rule  is  thus  stated  in  Long  v.  Williams,  74  Ind.  115 :  "There 
are  in  this  state  several  well-recognized  modes  of  disaffirming  a 
voidable  deed.  The  disaffirmance  may  be  by  entry  upon  the  land, 
by  a  written  notice  of  disaffirmance,  by  a  subsequent  conveyance, 
or  by  any  other  equally  emphatic  act  declaratory  of  an  intention 
to  disaffirm."  See  McCarty  v.  Woodstock  Iron  Co.,  92  Ala.  463, 
8  South.  417,  12  L.  R.  A.  136;  Singer,  etc.,  Co.  v.  Lamb,  81  Mo. 
221;  Illinois  Land  Co.  v.  Beem,  2  111.  App.  390;  Allen  v.  Poole, 
54  Miss.  323;  Dixon  v.  Merritt,  21  Minn.196;   Cogley  v.  Cushman, 


266  INFANTS 

16  Minn.  397  (Gil.  354);  State  v.  Plaisted,  43  N.  H.  413;  Bagley 
V.  Fletcher,  44  Ark.  153;  Drake's  Lessee  v.  Ramsay,  5  Ohio,  251; 
Doe  ex  dem.  Moore  v.  Abernathy,  7  Blackf.  442;  Buchanan  v. 
Hubbard,  119  Ind.  193,  21  N.  E.  538;  Craig  v.  Van  Bebber,  100  Mo. 
584,  13  S.  W.  906,  18  Am.  St.  Rep.  569,  note. 

The  time  within  which  the  deed  must  be  disaffirmed  after  the 
infant  becomes  of  full  age  depends  upon  the  particular  circum- 
stances of  each  case.  The  object  sought  to  be  accomplished  in  re- 
quiring a  disafifirmance  is  to  avoid  litigation,  and  to  enable  the 
parties  to  correct  the  evils  without  suit  and  costs.  McClanahan  v. 
Williams,  136  Ind.  30,  35  N.  E.  897;  Lange  v.  Dammier,  119  Ind. 
567,  21  N.  E.  749.  All  the  authorities  seem  to  agree  that  the  con- 
tract must  be  disaffirmed  within  a  reasonable  time.  "What  con- 
stitutes a  reasonable  time,"  said  the  court  in  Sims  v.  Bardoner,  86 
Ind.  87,  44  Am.  Rep.  263,  "within  which  a  person  who  has  ex- 
ecuted a  deed  during  infancy  shall  disaffirm  it,  depends  upon  the 
particular  circumstances  of  each  case.  The  right  must  be  exercised 
before  the  statute  of  limitations  has  become  a  bar  to  an  action  to 
recover  the  land  conveyed,  and  it  may  be,  under  the  circumstances 
of  the  particular  case,  that  it  should  be  exercised  within  a  shorter 
period.  It  is  the  disaffirmance  which  avoids  the  deed  of  the  in- 
fant, and  not  the  bringing  of  the  action  to  recover  the  land  con- 
veyed." 

In  the  case  at  bar  the  deed  was  executed  in  January,  1884, 
while  appellant  was  living  in  the  territory  of  Dakota,  and  upon 
her  return,  in  1885,  and  frequently  thereafter,  she  repudiated  the 
deed.  She  lived  with  her  mother  upon  the  land  until  the  mother's 
death,  and  since  then  she  has  had  possession  of  the  land  in  ques- 
tion, except  about  one-half  acre.  The  complaint  does  not  plead 
any  acts  or  conduct  on  the  part  of  appellant  after  the  disaffirmance 
which  show  an  affirmance  of  the  deed.  If  there  was  anything  said 
or  done  by  appellant  after  the  alleged  disaffirmance  that  would 
show  she  afterwards  confirmed  the  deed,  it  would  properly  be 
brought  forward  by  answer.  The  facts  pleaded  show  that  the  dis- 
affirmance was  within  a  reasonable  time  after  the  execution  of  the 
deed.  See  Scranton  v.  Stewart,  52  Ind.  68;  Sims  v.  Bardoner,  86 
Ind.  87,  44  Am.  Rep.  263,  and  cases  cited.  ♦  *  *  Judgment  re- 
versed. ^" 

18  Right  to  avoid  contract  during  infancy,  see,  also,  Gonackey  v.  General 
Accident  Fire  &  Life  Assur.  Corp.,  post,  p.  280. 


CONTRACTS  OP   INFANTS  267 


GOODNOW  V.  EMPIRE  LUMBER  CO. 

(Supreme  Court  of  Minnesota,  1884.    31  Minn,  468,  18  N.  W.  283,  47  Ani.  Rep. 

798.) 

GiLFiLLAN,  C.  J.  November  27,  1857,  Elizabeth  M.  Hamilton, 
then  a  married  woman  and  owner  of  certain  real  estate  in  the  city 
of  Winona,  conveyed  the  same,  her  husband  joining  in  the  deed, 
to  the  defendant  Huff,  under  whom  the  other  defendant  claims. 
Mrs.  Hamilton  was  born  April  21,  1842.  She  died  December  16, 
1867,  and  her  husband  died  November  10,  1874.  Plaintiffs  are 
their  children,  Mary,  born  March  31,  1859,  and  Eugenia,  January 
29,  1863.  They  bring  the  action  to  avoid  the  conveyance,  because 
of  the  minority  of  Elizabeth  M.  Hamilton  when  she  executed  it. 
Plaintiff's  gave  notice  to  the  lumber  company  of  their  intent  to 
disaffirm  the  conveyance,  March  22,  1883. 

Treating  this  as  a  sufficient  act  of  disaffirmance  in  case  they  then 
had  the  right  to  disaffirm,  and  it  is  not  material  whether  it  was  or 
not,  for  the  bringing  of  the  action,  which  was  sufficient,  immediately 
followed,  there  elapsed  between  the  execution  of  the  deed  and  its 
disaffirmance  twenty-five  years  and  four  months.  The  disability 
of  infancy  on  the  part  of  the  infant  grantor  ceased  April  21,  1863, 
and  as  the  real  estate  was  owned  by  her  at  the  time  of  her  marriage, 
her  disability  from  coverture,  so  far  as  affected  her  right  to  re- 
claim, hold  and  control  the  property  ceased  August  1,  1866,  when 
the  General  Statutes  (1866)  went  into  effect;  so  that  for  four 
years  and  eight  months  before  she  died  she  was  free  of  the  dis- 
ability of  infancy,  and  for  one  year  four  and  a  half  months,  she 
was  practically  free  of  the  disability  of  coverture.  During  the 
latter  period,  at  least,  she  was  capable  in  law  to  disaffirm  the 
deed,  if  she  had  the  right  to  do  so,  and  if  she  was  required  to 
exercise  the  right  within  a  reasonable  time  after  her  disability 
ceased,  the  time  was  running  for  that  period.  The  youngest  of  the 
plaintiffs  became  of  age  January  29,  1881,  so  that  even  if  the  period 
of  minority  of  plaintiffs  were  to  be  excluded  (and  we  doubt  if 
it  should  be)  there  is  to  be  added  at  least  two  years  and  two  months 
to  the  time  which  had  elapsed  when  the  grantor  died,  making  the 
time  three  years  and  over  six  months. 

The  main  question  in  the  case  is,  must  one  who,  while  a  minor, 
has  conveyed  real  estate,  disaffirm  the  conveyance  within  a  rea- 
sonable time  after  minority  ceases,  or  be  barred.  Of  the  decided 
cases  the  majority  are  to  the  effect  that  he  need  not  (where  there 
are  no  circumstances  other  than  lapse  of  time  and  silence),  and  that 
he  is  not  barred  by  mere  acquiescence  for  a  shorter  period  than 
that  prescribed  in  the  statute  of  limitations.  The  following  are 
the  principal  cases  so  decided:     Vaughan  v.  Parr,  20  Ark.  600; 


268  INFANTS 

Boodyv.  McKenney,  23  Me.  517;  Davis  v.  Dudley,  70  Me.  236,  35 
Am.  Rep.  318;  Prout  v.  Wiley,  28  Mich.  164;  Youse  v.  Norcum,  12 
Mo.  550,  51  Am.  Dec.  175;  Norcum  v.  Gaty,  19  Mo.  69;  Peterson 
V.  Laik,  24  Mo.  541,  69  Am.  Dec.  441 ;  Baker  v.  Kennett,  54  Mo.  82 ; 
Huth  V.  Car.  Mar.  Ry.  &  Dock  Co.,  56  Mo.  206;    Hale  v.  Gerrish, 

8  N.  H.  374;  Jackson  v.  Carpenter,  11  Johns.  (N.  Y.)  539;  Voor- 
hies  V.  Voorhies,  24  Barb.  (N.  Y.)  150;  McMurray  v.  McMurray,  66 
N.  Y.  175;  Lessee  of  Drake  v.  Ramsay,  5  Ohio,  252;  Cresinger  v. 
Lessee  of  Welch,  15  Ohio,  156,  45  Am.  Dec.  565;   Irvine  v.  Irvine, 

9  Wall.  617,  19  L.  Ed.  800;  Ordinary  v.  Wherry,  1  Bailey  (S. 
C.)  28. 

On  the  other  hand,  there  are  many  decisions  to  the  effect  that 
mere  acquiescence  beyond  a  reasonable  time  after  the  minority 
ceases  bars  the  right  to  disaffirm,  of  which  cases  the  following 
are  the  principal  ones:  Holmes  v.  Blogg,  8  Taunt.  35  ;  Dub.  &  W. 
Ry.  Co.  v.  Black,  8  Exch.  180;  Thomasson  v.  Boyd,  13  Ala.  419; 
Delano  v.  Blake,  11  Wend.  85,  25  Am.  Dec.  617;  Bostwick  v.  At- 
kins, 3  N.  Y.  53;  Chapin  v.  Shafer,  49  N.  Y.  407;  Jones  v.  Butler, 
30  Barb.  (N.  Y.)  641;  Kline  v.  Beebe,  6  Conn.  494;  Wallace's 
Lessee  v.  Lewis,  4  Har.  (Del.)  80;  Hastings  v.  Dollarhide,  24 
Cal.  195;  Scott  v.  Buchannan,  11  Humph.  (Tenn.)  468;  Hartman 
V.  Kendall,  4  Ind.  403;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec. 
589;  Richardson  v.  Boright,  9  Vt.  368;  Harris  v.  Cannon,  6  Ga. 
382;  Cole  v.  Pennoyer,  14  111.  158;  Black  v.  Hills,  36  111.  376,  87 
Am.  Dec.  224;  Robinson  v.  Weeks,  56  Me.  102;  Little  v.  Duncan, 
9  Rich.  (S.  C.)  55,  64  Am.  Dec.  760. 

The  rule  holding  certain  contracts  of  an  infant  voidable  (among 
them  his  conveyances  of  real  estate)  and  giving  him  the  right  to 
affirm  or  disaffirm  after  he  arrives  at  majority,  is  for  the  protec- 
tion of  minors,  and  so  that  they  shall  not  be  prejudiced  by  acts  done 
or  obligations  incurred  at  a  time  when  they  are  not  capable  of 
determining  what  is  for  their  interest  to  do.  For  this  purpose  of 
protection  the  law  gives  them  an  opportunity,  after  they  have  be- 
come capable  of  judging  for  themselves,  to  determine  whether  such 
acts  or  obligations  are  beneficial  or  prejudicial  to  them,  and 
whether  they  will  abide  by  or  avoid  them.  If  the  right  to  affirm  or 
disaffirm  extends  beyond  an  adequate  opportunity  to  so  determine 
and  to  act  on  the  result,  it  ceases  to  be  a  measure  of  protection, 
and  becomes,  in  the  language  of  the  court  in  Wallace's  Lessees 
V.  Lewis,  "a  dangerous  weapon  of  offense,  and  not  a  defense." 
For  we  cannot  assent  to  the  reason  given  in  Boody  v.  McKenney 
(the  only  reason  given  by  any  of  the  cases  for  the  rule  that  long 
acquiescence  is  no  proof  of  ratification)  "that  by  his  silent  ac- 
quiescence he  occasions  no  injury  to  other  persons  and  secures  no 
benefits  or  new  rights  to  himself.  There  is  nothing  to  urge  him 
as  a  duty  to  others  to  act  speedily." 


CONTRACTS  OF   INFANTS  269 

The  existence  of  such  an  infirmity  in  one's  title  as  the  right  of 
another  at  his  pleasure  to  defeat  it,  is  necessarily  prejudicial  to  it, 
and  the  longer  it  may  continue  the  more  serious  the  injury.  Such 
a  right  is  a  continual  menace  to  the  title.  Holding  such  a  menace 
over  the  title  is  of  course  an  injury  to  the  owner  of  it;  one  pos- 
sessing such  a  right  is  bound  in  justice  and  fairness  towards  the 
owner  of  the  title  to  determine  without  delay  whether  he  will  ex- 
ercise it.  The  right  of  a  minor  to  disaffirm  on  coming  of  age,  like 
the  right  to  disaffirm  in  any  other  case,  should  be  exercised  with 
some  regard  to  the  rights  of  others — with  as  much  regard  to  those 
rights  as  is  fairly  consistent  with  due  protection  to  the  interests 
of  the  minor. 

In  every  other  case  of  a  right  to  disaffirm,  the  party  holding  it  is 
required,  out  of  regard  to  the  rights  of  those  who  may  be  affected 
by  its  exercise,  to  act  upon  it  within  a  reasonable  time.  There 
is  no  reason  for  allowing  greater  latitude  where  the  right  exists 
because  of  infancy  at  the  time  of  making  the  contract.  A  reason- 
able time  after  majority  within  which  to  act  is  all  that  is  essential 
to  the  infant's  protection.  That  10,  15,  or  20  years,  or  such  other 
time  as  the  law  may  give  for  bringing  an  action,  is  necessary  as 
a  matter  of  protection  to  him  is  absurd.  The  only  effect  of  giving 
more  than  a  reasonable  time  is  to  enable  the  mature  man,  not  to 
correct  what  he  did  amiss  in  his  infancy,  but  to  speculate  on  the 
events  of  the  future — a  consequence  entirely  foreign  to  the  pur- 
pose of  the  rule  which  is  solely  protection  to  the  infant.  Reason, 
justice  to  others,  public  policy  (which  is  not  subserved  by  cher- 
ishing defective  titles),  and  convenience  require  the  right  of  dis- 
affirmance to  be  acted  upon  within  a  reasonable  time.  What  is  a 
reasonable  time  will  depend  on  the  circumstances  of  each  partic- 
ular case,  and  may  be  either  for  the  court  or  for  the  jury  to  deter- 
mine. Where,  as  in  this  case,  there  is  mere  delay,  with  nothing  to 
explain  or  excuse  it,  or  show  its  necessity,  it  will  be  for  the  court. 
Cochran  v.  Toher,  14  Minn.  385  (Gil.  293);  Derosia  v.  W.  &  St. 
P.  R.  Co.,  18  Minn.  133  (Gil.  119). 

Three  years  and  a  half,  the  delay  in  this  case  (excluding  the  pe- 
riod of  plaintiff's  minority,  after  the  time  within  which  to  act  had 
commenced  to  run),  was  prima  facie  more  than  a  reasonable  time, 
and  prima  facie  the  conveyance  was  ratified.    Order  reversed. 


270  INFANTS 


VII.  Same — Who  may  Avoid  Contract*' 


HARVEY  V.  BRIGGS. 
(Supreme  Court  of  Mississippi,  1890.    68  Miss.  60,  8  South.  274,  10  L.  R.  A.  62.) 

Action  of  ejectment  by  J.  J.  Briggs  against  J.  B.  Harvey.  R.  W. 
Briggs,  the  father  of  the  plaintiff,  was  in  possession  of  the  land, 
claiming  ownership,  when  he  died.  After  the  death  of  R.  W. 
Briggs,  his  widow  married  one  Courtney.  On  November  24,  1876, 
Courtney  and  his  wife  and  Ella  and  Dora  Briggs,  minors,  united 
in  executing  a  deed  of  the  lands  to  F.  A.  Harvey,  father  of  the  de- 
fendant. J.  J.  Briggs  was  at  that  time  a  minor.  Ella  and  Dora 
Briggs  died  before  attaining  their  majority.  There  was  judgment 
for  plaintiff,  and  defendant  appeals. 

Woods,  C.  J.^®  *  *  *  'jphe  right  of  a  minor  to  disaffirm  his 
contract,  and  the  terms  upon  which  such  disaffirmance  may  be  had, 
are  much  discussed  by  counsel.  *  *  *  jn  discussing  the  ef- 
fect of  the  conveyance  of  the  minors,  Dora  and  Ella  Briggs,  and 
the  attempted  disaffirmance,  by  the  plaintiff,  of  their  contract  (they 
having  died  during  their  minority),  it  is  asserted  that  the  right  to 
disaffirm  is  one  personal  to  the  minor,  reliance  being  put  upon  a 
remark  to  that  effect,  on  a  petition  for  reargument,  in  the  case  of 
Alsworth  V.  Cordtz,  31  Miss.  32.  The  remark  was  perfectly  cor- 
rect, as  applied  to  the  facts  of  that  case,  in  which  a  stranger  to  the 
minor,  one  not  the  heir  or  legal  representative,  attempted  to  assert 
this  privilege  of  the  minor  for  his,  the  stranger's,  own  benefit. 
Very  properly  the  court  denied  the  stranger  the  privilege.  But 
it  is  not  to  be  supposed  that,  by  this  remark  of  the  court  that  in- 
fancy is  a  personal  privilege  and  not  to  be  set  up  by  the  stranger 
attempting  to  plead  it  in  that  case,  it  was  never  designed  to  over- 
turn the  universally  recognized  right  of  the  legal  representative  or 
heir  of  the  infant  to  assert  this  privilege  of  pleading  infancy.  The 
counsel  have  taken  the  remark  with  too  much  literalness,  and  the 
position  that  no  one  but  the  infant  can  set  up  the  privilege  of 
minority  to  defeat  his  adversary  cannot  be  maintained.  The  le- 
gal representative  or  heir  of  the  infant  is  entitled  to  plead  minority 
in  avoidance  of  the  infant's  contracts,  if  the  plea  is  made  in  good 
time.  Here,  in  this  case,  Dora  and  Ella  Briggs  were  minors  when 
they  executed  the  deed  to  Harvey,  and  they  both  died  during  in- 
fancy.    This  sole  heir,  on  arriving  at  his  majority,  promptly  dis- 

17  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §} 
208,  209. 

18  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


CONTRACTS  OF   INFANTS  271 

affirms  their  contract,  and  seeks  to  avoid  it,  and  this  he  clearly 
has  the  right  to  do.  It  is  useless  to  dwell  on  this  point,  or  to  refer 
to  authority. 

In  this  connection,  too,  it  is  further  contended  for  appellant  that 
the  plaintiff,  if  entitled  to  disaffirm  the  contract  of  Dora  and  Ella, 
his  minor  sisters,  at  all,  can  only  do  so  on  repayment  of  the  consid- 
eration received  by  them  from  Harvey,  their  vendee.  It  is  true 
that  Chief  Justice  Sharkey,  in  Hill  v.  Anderson,  5  Smedes  &  M. 
216,  asserted  that  "an  infant  vendor  may  recover  back  his  property, 
real  or  personal,  but  in  such  cases  he  must  refund  what  he  has 
received."  And  this  seems  to  have  been  followed  and  adopted 
by  this  court  in  Ferguson  v.  Bobo,  54  Miss.  121.  But  the  point 
was  not  really  before  the  court  in  this  last-named  case,  and  the 
dictum  of  the  court,  which  was  in  agreement  with  Chief  Justice 
Sharkey's  opinion,  and  with  many  other  authorities  venerable  with 
age,  was  distinctly  recalled  and  repudiated,  by  the  same  judge  who 
gave  it  utterance,  in  the  later  case  of  Brantley  v.  Wolf,  60  Miss. 
420.  That  the  minor  must  refund,  if  he  elects  to  disaffirm,  is  true, 
provided  he  has  in  his  possession  the  consideration  received  by  him 
when  he  elects  to  disaffirm,  as  was  forcibly  said  in  the  last-named 
case:  "If  he  has  lost  or  squandered  the  consideration  during  mi- 
nority, this  is  nothing  more  than  the  law  expects  of  him,  and  he 
cannot  be  required  to  purchase  the  right  of  reclaiming  his  own  by 
still  further  abstractions  from  his  estate.  Such  a  rule  would  prac- 
tically strike  down  the  shield  which  the  law,  by  reason  of  his  in- 
experience and  youth,  throws  around  him."     *     *     *    Affirmed.  ^* 


VIII.  Same— What  Constitutes  Ratification*' 


HATCH  v.  HATCH. 

(Supreme  Court  of  Vermont,  1888.     60  Vt.  160,  13  Atl.  791.) 

Appeal  from  the  allowance  of  commissioners  of  certain  claims 
against  the  estate  of  Lura  Hatch,  deceased.  Petitioner's  claim  was 
based  on  the  following  facts:  In  1873,  when  Lura  Hatch  was  16 
years  old,  she  wished  to  go  to  a  higher  school  than  the  ordinary 
district  school  and  asked  her  mother  to  be  allowed  to  do  do.    As 

19  Accord:    Linville  v.  Greer,  165  Mo.  380,  65  S.  W.  579  (1901). 

Time  within  which  heir  must  disaffirm,  see  Harris  v.  Ross,  86  Mo.  89,  59 
Am.  Rep.  411   (1885). 

2  0  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
|§  210,  211. 


272  INFANTS 

her  mother  could  not  afford  to  pay  the  increased  expenses,  Lura 
expressed  her  willingness  that  the  expenses  should  be  eventually- 
paid  out  of  her  share  of  her  father's  estate.  Her  mother  thereupon 
agreed  to  advance  the  money,  with  the  understanding  that  Lura 
should  repay  the  amount  out  of  her  own  property.  After  Lura 
came  of  age,  and  while  still  attending  school,  she  reiterated  her  will- 
ingness to  pay  the  expenses  of  her  schooling,  referred  with  ap- 
proval to  her  promise  made  during  her  minority,  and  expressed  the 
wish  that  the  arrangement  should  continue.  The  total  amount 
advanced  by  the  mother,  with  interest  to  September  1,  1886,  is 
$720.20. 

Vbazey,  J.^^  *  ♦  *  'j^hg  plaintiff  was  the  mother  of  Lura  E. 
Hatch,  deceased,  and  claims  to  recover  the  items  of  her  account  in 
controversy  on  the  ground  of  a  contract  between  the  mother  and 
daughter  while  the  latter  was  a  minor  of  16  years  of  age,  and  a 
ratification  of  the  same  after  she  became  of  full  age.  The  first 
item,  including  interest  to  September  1,  1886,  was  $720.20,  for 
money  which  the  plaintiff  paid  for  school  expenses  of  Lura  while 
attending  academies.  We  think  the  report  shows  a  distinct  agree- 
ment on  the  part  of  Lura  to  repay  her  mother  for  these  expenses. 
Upon  the  facts  reported  the  agreement  was  a  natural  one  to  be 
made,  and  was  in  its  nature  beneficial  to  the  minor.  The  mother 
clearly  could  not  afford  to  give  her  daughter  the  higher  education 
which  she  desired.  The  latter  had  the  means  to  be  devoted  to  such 
use  by  the  devise  to  her  by  her  father,  but  not  in  ready  money.  The 
finding  of  the  auditor  is  incapable  of  a  fair  construction  other  than 
of  an  agreement  as  above  stated  when  taken  in  connection  with 
the  circumstances  existing  when  the  arrangement  was  made. 

The  defendant  relies  mainly  upon  the  claim  that  this  contract 
was  not  ratified  after  Lura  arrived  at  her  majority.  The  finding 
of  the  auditor  is  this:  "After  Lura  became  of  age,  and  while  still 
attending  the  seminary  at  Montpelier,  she  reiterated  to  her  mother 
her  desire  to  go  to  school  there,  and  her  willingness  to  pay  the  ex- 
penses incident  thereto  from  her  own  share,  and  referred  approv- 
ingly to  her  former  promise  to  that  effect  during  her  minority. 
She  told  her  mother  she  wished  this  arrangement  to  continue  as 
it  had  been  before  she  came  of  age."  There  is  no  question  but 
that  the  contract  by  which  a  debt  is  incurred  by  an  infant  may  be 
ratified  by  an  express  promise  to  pay  the  debt,  made  by  the  infant, 
when  he  becomes  of  age,  deliberately  and  with  knowledge  that 
he  is  not  liable  by  law.  To  this  extent  the  cases  agree.  Beyond 
this  they  are  not  entirely  harmonious,  at  least  in  the  enunciation 
of  what  is  required  to  constitute  ratification.  As  illustrations,  see 
Smith  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28,  and  Whitney  v.  Dutch, 
14  Mass.  457,  7  Am.  Dec.  229.    There  are  many  cases  which  hold 

21  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


CONTRACTS  OF   INFANTS 


273 


that,  although  an  express  ratification  is  necessary,  yet  it  is  not  re- 
quired to  be  in  the  form  of  an  express  new  promise.  Tibbets  v. 
Gerrish,  25  N.  H.  41,  57  Am.  Dec.  307,  and  Harris  v.  Wall,  1  Exch. 
122,  are  examples.  Acts  and  declarations  of  one,  after  attaining 
majority,  in  favor  of  his  contract,  may  be  of  a  character  to  con- 
stitute as  perfect  evidence  of  a  ratification  as  an  express  and  un- 
equivocal promise.  Mere  acknowledgment  of  the  contract,  or  par- 
tial payment,  will  not  alone  be  sufficient.  There  must  either  be 
an  express  promise  to  pay,  or  such  a  direct  confirmation  as  ex- 
pressly ratifies  the  contract,  although  it  be  not  in  the  language  of 
a  formal  promise.  Wilcox  v.  Roath,  12  Conn.  551 ;  Gay  v.  Ballou, 
4  Wend.  (N.  Y.)  403,  21  Am.  Dec.  158;   Whitney  v.  Dutch,  supra. 

The  cases  in  Vermont  have  not  recognized  the  necessity  of  an 
express  promise  in  terms  in  order  to  constitute  ratification  of  an 
obligation  incurred  during  infancy.  Where  the  declarations  or 
acts  of  the  individual  after  becoming  of  age  fairly  and  justly  lead 
to  the  inference  that  he  intended  to  and  did  recognize  and  adopt 
as  binding  an  agreement  executory  on  his  part  made  during  in- 
fancy, and  intended  to  pay  the  debt  then  incurred,  we  think  it  i? 
sufficient  to  constitute  ratification,  provided  the  declarations  were 
freely  and  understandingly  made,  or  the  acts  in  like  manner  per- 
formed, and  with  knowledge  that  he  was  not  legally  liable.  Thi? 
proposition  is  clearly  within  the  scope  of  decision  in  a  long  line 
of  approved  authorities  cited  in  Tyler,  Inf.  (2d  Ed.)  c.  6,  and  1 
Amer.  Lead.  Gas.  250.  The  Vermont  cases  plainly  warrant  us  in 
holding  that  the  above  conditions  are  sufficient.  In  Bigelow  v. 
Kinney,  3  Vt.  353,  21  Am.  Dec.  589,  Prentiss,  C.  J.,  says :  "Though 
it  is  laid  down  that  a  bare  acknowledgment  or  recognition  of  the 
contract  of  an  infant,  after  he  comes  of  age,  without  an  express 
promise,  will  not,  where  the  contract  is  for  the  payment  of  money, 
or  the  performance  of  some  personal  duty,  and  remains  executory, 
amount  to  a  ratification,  yet  in  general  an  express  act  done  under 
a  contract  of  his  infancy,  implying  a  confirmation  of  it,  has  been 
held  to  be  sufficient."    See,  also,  Forsyth  v.  Hastings,  27  Vt.  646. 

Regarding  these  conditions  as  not  only  sufficient,  but  required, 
we  think  they  are  all  covered  by  the  finding  of  the  auditor.  Taking 
that  which  she  said  to  her  mother  after  arriving  at  full  age,  and 
while  still  at  the  seminary,  in  connection  with  the  unmistakable  un- 
derstanding between  the  parties  during  the  infancy,  and  all  the  cir- 
cumstances, the  conclusion  seems  to  us  irresistible  that  there  was  a 
mutual  understanding  that  Lura  would  not  only  repay  her  mother 
for  the  future  advances,  but  would  pay  the  past  advances  as  she 
had  at  first  promised.  She  then  called  the  first  arrangement  "her 
former  promise,"  and  told  her  mother  she  wished  it  to  continue 
as  it  had  been  before  she  became  of  age.  When  the  minds  of  con- 
COOLEY  P.&  D.Rel.— 18 


274  INFANTS 

tracting  parties  meet,  and  they  both  understand  that  by  what  is 
said  it  is  intended  that  it  should  be  taken  as  an  assumption  of  an 
obligation  and  a  promise  to  pay,  it  is  the  equivalent  of  a  promise  in 
terms.  There  is  no  question  but  Lura  spoke  deliberately  and  with- 
out duress  in  any  form,  and  we  think  it  is  plain  that  she  spoke 
understandingly  as  to  her  legal  liability.  It  has  been  held  that, 
in  the  absence  of  any  proof  to  the  contrary,  it  is  to  be  presumed 
that  at  the  time  of  making  the  new  promise  the  person,  lately  an 
infant,  was  aware  of  his  rights.  Taft  v.  Sergeant,  18  Barb.  321. 
This  would  seem  to  be  the  natural  presumption. 

But,  however  this  may  be,  the  language  of  Lura,  under  the  cir- 
cumstances in  which  it  was  spoken,  imports  such  knowledge.  It 
is  difficult  to  see  what  should  lead  Lura  to  renew  her  promise  as 
to  the  payments  in  her  behalf  during  infancy  except  upon  the  the- 
ory of  knowledge  that  such  renewal  was  necessary  to  create  legal 
liability.  She  was  then  at  the  seminary,  her  contemplated  edu- 
cation incomplete,  and  no  change  from  the  previous  condition  ex- 
cept that  she  had  attained  her  majority.  She  then  brings  the  mat- 
ter up,  reiterates  her  desire  to  go  on,  and  in  effect  renews  her 
former  promise  so  as  to  make  the  renewal  applicable  as  to  past 
as  well  as  future  advances.  She  had  the  education  which  about 
two  years  in  the  academy  would  bring  after  having  passed  through 
the  common  school. 

We  come  to  the  conclusion  of  her  knowledge  of  the  legal  situa- 
tion without  hesitation.  *  *  *  fj^g  judgment  is  reversed,  and 
judgment  is  rendered  for  the  plaintiff  for  the  item  of  $720.20  with 
interest. 


DAMRON  v.  RATLIFF. 

(Court  of  Appeals  of  Kentucky,  1906.  123  Ky.  758,  97  S.  W.  401.) 

Action  by  William  J.  Damron  against  W.  O.  B.  Ratliff.  From 
a  judgment  for  defendant,  plaintiff  appeals. 

Lassing,  J.22  In  May,  1887,  Walter  Damron  and  his  father, 
James  Damron,  conveyed  by  deed  duly  executed  to  W.  O.  B.  Rat- 
liff a  tract  of  land  in  Pike  county,  Ky.  A  few  months  after  this 
conveyance,  appellee  Ratliff  moved  upon  and  took  actual,  exclu- 
sive possession  of  the  entire  tract  of  land,  and  has  remained  and 
continued  in  the  actual  possession  thereof  ever  since.  At  the  date 
of  this  conveyance,  Walter  Damron  was  under  21  years  of  age.  Ap- 
pellee agreed  to,  and  did,  pay  him  $350  for  said  land,  $250  of  which 
was  paid  before  the  said  Walter  Damron  became  of  age,  and  $100 
was  paid  on  April  26,  1892,  and  after  he  became  of  age.  On  April 
30,  1892,  the  said  Walter  Damron  conveyed  this  same  tract  of  land 

22  Part  of  the  opinion  is  omitted. 


CONTRACTS  OP  INFANTS  275 

to  one  A.  J.  Auxier,  by  deed  which  was  duly  acknowledged,  and 
Auxier,  on  the  same  day,  conveyed  the  same  land  to  W.  J.  Damron, 
appellant  herein.     *     *     * 

Two  questions  are  presented  for  determination :  First,  did  the 
acceptance  of  $100,  the  remainder  of  the  purchase  price,  by  Wal- 
ter Damron  after  reaching  his  majority  amount  to  a  ratification 
of  the  sale  he  had  made  while  an  infant?  and,  second,  was  the 
sale  and  conveyance  from  Auxier  to  appellant  champertous? 

We  will  consider  the  question  of  ratification  first.  If  the  con- 
tract of  sale  made  by  Walter  Damron  to  appellee  Ratliff  was  a 
voidable  contract,  then  it  was  such  a  one  as  he  could  ratify  after 
arriving  at  the  age  of  21  years.  The  weight  of  authority  is  that 
the  contract  in  question  was  a  voidable  contract.  "Much  the 
greater  portion  of  all  of  the  acts  and  contracts  of  an  infant  are 
voidable  only,  for  it  is  the  policy  of  the  law  not  to  encumber  the 
free  action  of  the  infant  by  disabilities,  but  allow  him  the  right  to 
suspend  ultimate  deci-sion  upon  a  doubtful  question  of  benefit  until 
he  shall  be  of  full  age,  and  placed  on  a  footing  equal  to  the  other 
contracting  party."     Story  on  Contracts,  art.  58. 

A  voidable  act  is  binding  upon  the  adult  contracting  party  until 
disafiirmed  by  the  infant,  and  hence  is  capable  of  being  affirmed 
when  the  infant  attains  his  majority.  Chief  Justice  Parker  thus 
states  the  rule  in  Whitney  v.  Dutch,  14  Mass.  462,  7  Am.  Dec.  229: 
"Whenever  the  act  done  may  be  for  the  benefit  of  the  infant  it  shall 
not  be  considered  void,  but  that  he  shall  have  his  election  when 
he  comes  of  age  to  affirm  or  avoid  it."  The  act  of  the  infant  may 
be  ratified  in  three  ways:  First,  by  the  failure  on  his  part  to  dis- 
affirm the  contract  within  a  reasonable  time  after  reaching  full  age ; 
second,  by  accepting  the  benefits  of  the  contract  made  during  in- 
fancy after  arriving  at  full  age,  and,  third,  by  retaining  property 
received  under  a  contract  made  during  infancy,  and  using  and  en- 
joying same  after  coming  of  full  age. 

In  this  case,  it  is  necessary  to  consider  only  the  second  ground 
upon  which  a  contract  may  be  ratified,  to  wit,  the  acceptance  of  a 
consideration  for  the  contract  on  reaching  his  majority.  The  rule 
is  thus  laid  down  in  the  note  to  the  case  of  Craig  v.  Van  Bebber, 
18  Am.  St.  Rep.  715 :  "If  a  person  after  attaining  his  majority  ac- 
cepts the  consideration  of  a  contract  made  by  him  while  an  in- 
fant, such  an  act  very  plainly  amounts  to  a  ratification  of  the  con- 
tract; as,  where  an  infant  lessor  accepts  rent  after  reaching  full 
dge,  or  receives  interest  under  his  agreement,  or  accepts  the  pur- 
chase price  of  property  sold  by  him.  Ferguson  v.  Bell's  Adm'r,  17 
Mo.  347,  and  other  cases  therein  referred  to."  This  case  and  the 
doctrine  laid  down  in  the  cases  cited  herein  are  directly  in  point, 
and  are  conclusive  of  the  question  under  consideration. 

Walter  Damron  reached  his  majority  on  or  before  the  26th  day 


276  INFANTS 

of  April,  1892,  and  on  said  date  he  accepted  the  remainder  of  the 
purchase  price  for  the  land  which  he  had  sold  to  appellee  Ratlifif. 
By  this  act  he  ratified  the  sale  which  he  had  made  to  Ratlifif  during 
his  infancy,  and  the  act  of  ratification  related  back  to  the  date  of  the 
contract  of  sale  and  made  that  contract  as  perfect  and  complete 
as  though  he  had  been  21  years  of  age  when  it  was  made.  This 
being  true,  the  sale  and  conveyance  which  he  made,  or  attempted 
to  make,  to  Auxier  four  days  later  was  absolutely  void,  as  he  had 
perfected  the  title  to  said  land  in  appellee  by  the  acceptance  of  the 
remainder  of  the  purchase  money  for  same  from  him. 

The  ratification  of  the  contract  of  sale  by  Walter  Damron  to  ap- 
pellee after  reaching  his  majority  having  perfected  the  title  of  ap- 
pellee to  the  land  in  question,  it  is  unnecessary  to  pass  upon  the 
second  question  raised  upon  this  appeal.  The  judgment  is  af- 
firmed. 


IX.  Same — What  Constitutes  Disaffirmance  *• 


HAYNES  V.  BENNETT. 

(Supreme  Court  of  Michigan,  18S4.    53  Mich.  15,  18  N.  W.  539.) 

Sherwood,  J.^*  Ejectment  to  recover  40  acres  of  land.  *  *  « 
The  defendant  claims  to  derive  title  to  the  land  under  and  by  virtue 
of  a  deed  obtained  from  Mary  McCartney  while  an  infant  under 
the  age  of  16  years.  *  *  *  The  plaintiff  had  judgment  for 
the  premises,  and  the  defendant  was  allowed  $25  for  his  improve- 
ments. 

The  case  now  comes  before  us  on  error  upon  the  findings  of  the 
circuit  judge.  From  such  findings  it  appears  that  the  land  in  ques- 
tion was  entered  by  Richard  M.  Daniels,  and  by  regular  transfer, 
shown  by  proper  conveyances,  the  title  was  conveyed  to  (the  mi- 
nor) Mary  McCartney,  March  9,  1876.  She  then  conveyed  to  Chap- 
man; Chapman  to  Bull;  Bull  to  Corey;  and  Corey  to  Bennett, 
the  defendant.  Mary  McCartney  became  of  age  in  November, 
1881,  and  on  the  seventeenth  day  of  May  following  she  conveyed 
the  premises  to  the  plaintiff's  grantor.  It  further  appears  that  the 
land  has  been  continuously  occupied  by  the  defendant  and  his 
grantors  since  1854;  that  Miss  McCartney  at,  and  for  several  years 
immediately  prior  to,  the  defendant's  purchase,  resided  out  of  the 

28  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3cl  Ed.)  § 
212. 

2*  Part  of  the  opinion  Is  omitted. 


CONTRACTS  OP   INFANTS  277 

county  and  had  not  seen  the  lands  for  three  or  four  years;  that 
no  possession  of  the  premises  was  ever  demanded  or  notice  to 
quit  given  before  suit  brought;  that  Mrs.  Taft  (Miss  McCartney's 
name  after  marriage)  never  gave  any  notice  or  did  anything  to 
revoke  her  first  deed,  except  the  making  of  the  conveyance  to 
plaintiff's  grantors;  that  the  defendant  has  peaceably  occupied 
and  possessed  the  premises  in  question  as  a  part  of  his  farm  from 
the  time  of  his  purchase  until  the  commencement  of  this  suit;  and 
that  the  improvements  he  has  made  increased  the  value  of  the  land 
$25. 

Upon  these  facts  the  circuit  judge  held  as  matter  of  law  that 
the  giving  and  recording  of  the  deed  to  plaintiff's  grantors  after 
Mrs.  Taft  became  of  age,  at  the  time  she  did  it,  was  a  good  revo- 
cation of  her  first  deed,  and  without  other  or  further  act  or  acts 
entitled  the  plaintiff  to  bring  this  suit  against  her  first  grantee  in 
possession,  and  that  defendant  could  recover  the  $25  for  improve- 
ments. We  think  the  finding  was  correct,  and  we  see  no  error  in 
the  record  as  presented.  The  deed  of  an  infant  is  voidable,  and 
must  be  avoided  before  the  action  will  lie;  but  when  properly 
avoided  no  other  thing  is  necessary  to  be  done  before  bringing  suit. 
The  necessity  for  the  infant  to  make  entry  before  giving  the  deed 
of  avoidance,  or  before  bringing  suit,  does  not  exist  in  this  state. 
Title  by  descent,  and  our  mode  of  transferring  title  by  deed,  are 
regulated  by  statute.  The  old  common-law  doctrine  of  feoffment 
with  livery  of  seizin  does  not  constitute  any  part  of  our  law  of  con- 
veyancing. Our  registry  laws  supply  their  place,  and  furnish  the 
notoriety  of  transfer  intended  to  be  given  by  that  ancient  mode 
of  passing  title;  and  the  making  and  recording  of  the  second  deed 
in  this  case  was  entirely  sufficient.  2  How.  St.  c.  216,  §§  5652, 
5657;  1  Pars.  Cont.  (3d  Ed.)  pp.  Z7Z,  374;  Eagle  Fire  Co.  v.  Lent, 
6  Paige  (N.  Y.)  635;  Cresinger  v.  Welch,  15  Ohio,  192,  45  Am. 
Dec.  565;  Jackson  v.  Carpenter,  11  Johns.  (N.  Y.)  539;  Jackson 
V.  Burchin,  14  Johns.  (N.  Y.)  124;  Hoyle  v.  Stowe,  19  N.  C.  320; 
Lessee  of  Tucker  v.  Moreland,  10  Pet.  58,  9.  L.  Ed.  345 ;  Bing.  Inf. 
60;  Dixon  v.  Merritt,  21  Minn.  196;  McGan  v.  Marshall,  7  Humph. 
(Tenn.)  121;  Peterson  v.  Laik,  24  Mo.  541,  69  Am.  Dec.  441; 
Lessee  of  Drake  v.  Ramsay,  5  Ohio,  252;  Hastings  v.  Dollarhide, 
24  Cal.  195;  Pitcher  v.  Laycock,  7  Ind.  398;  Laws  1881,  p.  385; 
Crane  v.  Reeder,  21  Mich.  82,  4  Am.  Rep.  430;  Prout  v.  Wiley,  28 
Mich,  164.     *     *     *     Judgment  affirmed.  ^^ 

2  5  See,  also,  Shroyer  v.  Pittenger,  ante,  p.  263. 


278  INFANTS 


X.  Same — Return  of  Consideration** 


CRAIG  V.  VAN  BEBBER. 

(Supreme  Court  of  Missouri,  1890.    100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep. 

569. 

Black,  J.^^  This  is  an  action  of  ejectment  for  100  acres  of  land, 
commenced  by  Ella  Craig  and  her  husband,  Daniel  Craig,  against 
Van  Bebber,  Tully,  and  Sprankle.  The  plaintiff  Ella  Craig  in- 
herited the  land  from  her  father;  and  she  and  her  husband  con- 
veyed the  same  to  Henderson  Tabor  by  a  deed  dated  the  28th 
July,  1884,  for  the  consideration  of  $1,463.  Of  this  amount,  Tabor 
paid  in  cash  $350,  and  executed  to  them  his  four  notes,  due  in 
one,  two,  three,  and  four  years,  for  the  balance  of  the  purchase 
price,  and  secured  the  same  by  a  deed  of  trust  on  the  land.  The 
sale  was  made  through  an  agent,  and  the  agreement  was  that  the 
plaintiffs  should  have  the  first  deed  of  trust.  It  seems  however, 
that  Tabor  gave  a  deed  of  trust  on  the  land  to  secure  a  debt  of 
$800,  which  was  by  some  manipulation  made  prior  in  point  of  time 
to  the  one  given  the  plaintiffs  for  purchase  money.  This  prior 
deed  of  trust  was  made  by  Tabor  to  one  J.  B.  Watkins  as  trustee. 
By  virtue  of  authority  set  out  in  the  deed  of  trust,  Watkins  consti- 
tuted W.  J.  Patterson  his  attorney  in  fact  to  act  for  and  in  his 
behalf.  Patterson,  as  such  attorney  in  fact  for  Watkins,  adver- 
tised and  sold  the  property  to  defendant  Sprankle  on  the  8th  Oc- 
tober, 1886.     The  other  defendants  are  the  tenants  of  Sprankle. 

The  plaintiff  Ella  Craig  was  a  minor,  16  years  of  age,  when  she 
and  her  husband  executed  the  deed  to  Henderson  Tabor.  The 
notes  executed  by  Tabor  are  now  in  the  possession  of  plaintiffs, 
and  have  not  been  paid.  Mrs.  Craig  became  18  years  of  age  on 
the  18th  day  of  March,  1886;  and  this  suit  was  commenced  in 
November,  1886,  to  disaffirm  the  deed  made  by  her  while  a  minor. 
Plaintiffs  did  not  offer  to  refund  the  $350.  The  evidence  offered 
to  show  a  ratification  is,  in  substance,  this:  As  soon  as  the  plain- 
tiffs learned  that  their  deed  of  trust  was  a  second  lien  instead 
of  the  first,  they  demanded  a  first  deed  of  trust,  according  to  their 
contract;  but  their  demand  was  refused.  They  also  demanded 
payment  of  the  notes,  which  was  refused.  They  executed  a  new 
deed  after  the  wife  became  of  age,  and  offered  to  deliver  it,  pro- 
vided the  notes  were  paid  or  secured  by  a  first  deed  of  trust,  but 
upon  no  other  condition.     *     *     * 

2  6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  Si 
214,  215. 

27  Part  of  the  opinion  is  omitted. 


CONTRACTS  OP   INFANTS  279 

The  defendants  asked,  but  the  court  refused  to  give,  the  fol- 
lowing declaration  of  law:  "The  infancy  of  Ella  Craig  does  not  en- 
title plaintiff  to  recover,  as  no  offer  or  tender  was  made  by  them  to 
return  to  Sprankle  funds  or  consideration  received  by  Ella  Craig, 
arising  from  the  sale  and  conveyance  of  the  land  by  her  to  Tabor." 
The  theory  of  this  instruction  is  that  plaintiffs  were  bound  to  make 
a  tender  to  Sprankle  for  the  $350  paid  them  by  Henderson  Tabor, 
the  grantee  in  the  deed  which  the  plaintiffs  seek  to  avoid.  Where 
the  contract  has  been  executed  by  the  infant,  and  has  been  in  whole 
or  in  part  executed  by  the  adult,  and  the  infant,  upon  coming  of 
age,  repudiates  the  transaction,  he  must  return  the  property  or  con- 
sideration received.  This  general  rule  has  often  been  stated  with- 
out any  qualification  whatever.  But  the  weight  of  authority  is 
that  the  rule  can  only  apply  where  the  infant  has  the  property 
or  consideration  at  the  time  he  attains  full  age.  If  he  has  wasted  or 
squandered  the  consideration  or  property  during  infancy,  then  he 
can  repudiate  the  contract  without  making  a  tender.  Tyler,  Inf. 
(2d  Ed.)  §  37;  Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233; 
Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Reynolds 
V.  McCurry,  100  111.  356;  Brandon  v.  Brown,  106  111.  519;  Price 
V.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Walsh  v.  Young,  110 
Mass.  396. 

The  privilege  of  repudiating  a  contract  is  accorded  an  infant 
because  of  the  indiscretion  incident  to  his  immaturity ;  and,  if 
he  were  required  to  restore  an  equivalent  where  he  has  wasted 
or  squandered  the  property  or  consideration  received,  the  privi- 
lege would  be  of  no  avail  when  most  needed.  Kerr  v.  Bell,  44  Mo. 
120;  Highley  v.  Barron,  49  Mo.  103;  and  Baker  v.  Kennett,  54 
Mo.  82,  are  cited  as  affirming  the  general  rule  before  stated  with- 
out any  exception ;  and  some  expressions  used  would  seem  to  lead 
to  that  result.  But  a  careful  consideration  of  the  facts  of  these 
cases  will  show  that  there  was  no  occasion  for  considering  the  ex- 
ception. The  remarks  there  made  must  be  read  and  understood  in 
the  light  of  the  facts  before  the  court.  We  entertain  no  doubt 
but  the  rule,  with  the  qualification  before  stated,  is  the  correct  one. 
The  instruction  is  therefore  faulty,  and  especially  so  in  view  of  the 
evidence  that  Mrs.  Craig  did  not  have  any  money  or  property 
save  the  land  in  question.  The  notes  are  in  the  hands  of  the  plain- 
tiffs, and  the  fact  of  disaffirmance  will  discharge  the  maker;  for 
the  law  is  well  settled  that  the  infant,  having  repudiated  his  or 
her  deed,  cannot  recover  the  unpaid  purchase  price. 

The  evidence  fails  to  make  out  a  prima  facie  case  of  ratification. 
There  is  no  evidence  that  Mrs.  Craig,  or  even  her  husband,  re- 
ceived any  part  of  the  purchase  price  after  she  attained  her  ma- 
jority. She  and  her  husband  did  offer  to  execute  and  deliver  a 
confirmatory  deed  upon  being  paid  the  balance  of  the  purchase 


280  INFANTS 

price,  namely,  $1,113,  or  upon  receiving  a  first  deed  of  trust  upon 
the  land  securing  that  amount ;  but  it  did  not  suit  the  purposes  of 
Tabor,  or  any  other  of  the  interested  parties,  to  comply  with  that 
condition.  A  mere  acknowledgment  that  a  debt  exists,  or  that  a 
contract  has  been  made,  will  not  constitute  a  ratification.  Baker 
V.  Kennett,  supra.  There  must  be  an  intention  to  affirm  the  deed. 
A  deed  of  confirmation  is  not  necessary,  but  the  act  relied  upon 
must  be  of  such  a  nature  as  to  show  a  clear  intention  to  confirm 
the  deed.  An  ofifer  to  make  a  deed  of  ratification  upon  the  con- 
dition that  the  unpaid  purchase  price  is  paid  'or  secured  is  no 
evidence  of  a  confirmation.  It  rather  shows  a  disposition  to  dis- 
affirm, should  the  proposed  condition  not  be  performed.  *  *  * 
Judgment  affirmed. 


GONACKEY  v.  GENERAL  ACCIDENT,  FIRE  &  LIFE  AS- 

SUR.  CORP. 

(Court  of  Appeals  of  Georgia,  1909.    6  Ga.  App.  381,  65  S.  B.  53.) 

Elizabeth  Bell  Gonackey,  a  minor,  by  next  friend,  brought  suit 
for  $300  on  a  policy  of  insurance  issued  by  the  defendant  on  the 
life  of  her  brother  in  which  she  was  named  as  sole  beneficiary. 
Within  10  days  immediately  following  the  death  of  the  insured,  pe- 
titioner was  paid  $50  by  one  Robinson,  an  agent  of  the  company, 
when  she  delivered  the  policy  to  him  and  signed  a  receipt  of  some 
kind  for  the  money  paid  to  her.  She  delivered  the  policy  to  the 
company  for  the  reason  that  she  thought  she  was  entitled  to  re- 
ceive no  more  than  $50  thereunder;  but,  subsequently  ascertain- 
ing that  she  was  entitled  to  the  full  amount  of  the  policy,  she  made 
a  demand  on  the  company  for  it  through  her  next  friend  through 
whom  she  now  sues,  which  demand  was  refused,  and  the  policy 
contract  is  in  the  possession  of  the  company.  It  is  also  alleged 
that  the  petitioner  is  unable  to  pay  the  $50  which  was  paid  to  her 
on  the  policy  because  she  has  spent  the  whole  amount,  and  is  un- 
able to  make  any  restitution. 

The  company  filed  a  general  demurrer,  making  the  contentions 
(1)  that  the  contract  made  by  the  infant  beneficiary  with  the  in- 
surance company  in  settlement  of  the  policy  was  fully  executed 
and  cannot  be  avoided  during  infancy;  (2)  that  the  infant  must 
make  restitution  of  the  $50  to  the  company  before  disaffirming  the 
contract.  The  court  sustained  the  general  demurrer  and  dismissed 
the  petition;    and  error  is  assigned  on  this  judgment. 

Hill,  C.  J.^^    All  contracts  relating  to  personalty  made  by  an 

2  8  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


CONTRACTS  OF   INFANTS  281 

infant  can  be  avoided  during  minority  as  well  as  after  the  infant 
has  attained  majority,  and  this  right  applies  to  executed  as  well 
as  to  executory  contracts.  Harris  v.  Cannon,  6  Ga.  387 ;  Smith 
V.  Smith,  36  Ga.  189,  91  Am.  Dec.  761 ;  Nathans  v.  Arkwright,  66 
Ga.  186;  Clark  on  Contracts  (2d  Ed.)  164;  22  Cyc.  611.  These 
authorities  announce  the  rule  that  while  a  deed  to  land  executed  by 
an  infant  cannot  be  disaffirmed  during  his  minority,  although  he 
may  enter  on  the  land  and  take  the  profits  until  the  time  arrives 
when  he  has  the  legal  capacity  to  affirm  or  disaffirm,  this  rule 
does  not  apply  to  a  contract  relating  to  personalty,  and  that  such 
a  contract  may  be  avoided  by  him  while  he  is  still  an  infant.  Clark 
in  his  work  on  contracts,  supra,  states  that  the  rule  is  general  and 
almost  universal  that  an  infant  may  avoid  any  contract  relating  to 
his  personal  property  before  he  becomes  of  age,  and  cites  many 
authorities  in  support  of  this  dictum.  Probably  the  statement  of 
the  rule  that  an  infant  cannot  disaffirm  his  deed  to  land  is  subject 
to  the  exception  that  if,  in  order  to  protect  the  infant  in  his  rights, 
it  should  be  necessary  that  the  deed  be  avoided  before  his  major- 
ity, it  might  be  done  by  him  suing  by  his  guardian  or  next  friend. 

Following  the  weight  of  authority  on  this  subject,  it  has  been 
held  by  the  Supreme  Court  that,  while  an  infant  should  not  be  al- 
lowed to  avoid  his  contract  without  making  restitution  of  any 
money  or  property  which  he  has  received  under  the  contract,  yet 
he  is  not  required  to  make  restitution  as  a  condition  precedent  to 
a  disaffirmance,  unless,  at  the  time  of  the  disaffirmance,  he  has  the 
fruits  of  the  contract  in  his  possession.  If  he  cannot  restore,  he  is 
not  required  to  do  so.  This  has  been  expressly  ruled  by  this  court 
in  the  case  of  Hughes  v.  l^.Iurphy,  5  Ga.  App.  328,  63  S.  E.  231,  and 
by  the  Supreme  Court  in  Shuford  v.  Alexander,  74  Ga.  295,  and 
Southern  Cotton  Oil  Co.  v.  Dukes,  121  Ga.  788,  49  S.  E.  788.  See, 
also,  Clark  on  Contracts,  p.  171 ;  22  Cyc.  pp.  614,  616;  16  Amer.  & 
Eng.  Enc.  of  Law  (2d  Ed.)  293,  and  an  elaborate  note  on  the  sub- 
ject to  the  case  of  Englebert  v.  Troxell,  40  Neb.  195,  58  N.  W.  852, 
26  L.  R.  A.  177,  42  Am.  St.  Rep.  665. 

The  cases  of  Strain  v.  Wright,  7  Ga.  568,  Harris  v.  Collins,  75 
Ga.  97,  and  Thomason  v.  Phillips,  7Z  Ga.  140,  relied  upon  by  the 
defendant  in  error  on  their  facts,  are  not  in  conflict  with  the  deci- 
sions of  the  Supreme  Court  above  cited.  In  each  of  those  cases  it 
appeared  that  the  minor  was  at  the  time  of  the  disaffirmance  of 
his  contract  in  possession  of  the  fruits  of  the  contract,  and  could 
make  restitution.  Even  if  the  plaintiff  in  this  case  was  required  to 
restore  the  money  which  had  been  paid  to  her  when  she  surren- 
dered the  policy  to  the  company,  there  was  still  due  her  under  the 
policy  according  to  the  allegations  of  the  petition,  the  sum  of  $250. 
But  for  the  reasons  stated  we  think  she  is  entitled  to  recover  the 
full  amount  of  the  policy  without  any  deduction  on  account  of  the 


282  INFANTS 


$50  which  had  been  improperly  and  imprudently  paid  to  her  by 
the  company,  and  which  she  had  perhaps  improvidently  spent  or 
squandered.     *    *    ♦    Judgment  reversed.'^" 


20 


XI.  Liability  of  Infants  for  Torts  »• 


YOUNG  V.  MUHLING. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1900. 

48  App.  Div.  617,  63  N.  Y.  Supp.  181.) 

Action  by  Charles  Young  against  Eugene  Miihling  to  recover 
damages  for  the  abuse  of  plaintiff's  team,  which  had  been  hired 
to  defendant.  From  a  judgment  for  plaintiff,  and  an  order  deny- 
ing a  new  trial,  defendant  appeals. 

WiLivARD  BartlETT,  J.  At  the  time  of  the  transactions  involved 
in  this  suit  the  defendant  was  a  minor.  About  the  middle  of  June, 
1898,  he  went  to  the  plaintiff's  livery  stable,  at  Spring  Valley,  in 
Rockland  county,  and  ordered  a  team  with  which  to  go  to  Haver- 
straw  on  the  3d  of  July  following.  He  told  the  plaintiff's  agent  in 
charge  of  the  stable  that  he  wanted  to  drive  to  Haverstraw,  and 
"cut  a  swell"  there,  and  the  agent  swore  that  he  let  him  the  horses 
for  that  purpose.  The  arrangement  was  that  the  team  should  be 
delivered  at  the  defendant's  house  in  the  village  of  Monsey,  on 
July  3,  1898,  at  half  past  12  o'clock  in  the  afternoon.  The  team 
was  brought  to  the  defendant's  residence  at  Monsey,  at  the  time 
specified,  by  the  plaintiff's  agent,  who  then  asked  the  defendant 
where  he  intended  driving.  According  to  the  testimony  of  this 
witness,  the  defendant  responded:  "I  am  going  direct  to  Haver- 
straw, put  the  team  in,  have  them  fed  and  cared  for,  and  return 
home  in  the  evening."  The  witness  responded:  "You  need  not 
hurry  to  get  home.  If  you  are  detained  by  your  friends  longer 
than  you  expect,  come  home  at  10  o'clock,  and  later,  if  necessary; 
but  don't  injure  the  team."  Accompanied  by  a  friend,  the  defend- 
ant drove  the  team  to  Haverstraw  by  way  of  Nanuet  and  the  Short 
Clove,  which  is  a  somewhat  longer  route  than  another  road  which 
he  might  have  taken.    The  day  was  extremely  hot,  and  on  the  way 

2  9  As  to  necessity  of  returning  the  consideration,  see,  also,  Beickler  v. 
Guenther,  ante,  p.  256,  WuUer  v.  Chuse  Grocery  Co.,  ante,  p.  262,  and  Har- 
vey V.  Briggs,  ante,  p.  270. 

See,  also,  Nielson  v.  International  Text-Book  Co.,  106  Me.  104,  75  Atl.  330 
(1909). 

3  0  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.) 
§§  221,  222. 


LIABILITY  OF   INFANTS   FOR  TORTS  283 

homeward  in  the  evening-  one  of  the  horses  was  overcome,  and 
died  from  the  effects  of  what  we  must  assume  to  have  been  heat 
and  overexertion. 

This  action  is  brought  to  recover  damages  against  the  defendant 
for  a  mahcious  abuse  of  the  plaintiff's  team,  resulting  in  the  death 
of  one  of  the  horses  and  injury  to  the  other.  The  complaint  also 
alleges  that  the  defendant  drove  said  team  not  only  to  Haver- 
straw,  but  to  divers  other  and  more  distant  places  in  and  about  the 
county  of  Rockland.  The  answer  contains  a  denial  of  the  ma- 
terial allegations  of  the  complaint,  except  those  which  relate  to  the 
hiring  of  the  team,  and  also  sets  up  a  plea  of  infancy. 

Although  the  complaint  alleges  and  the  answer  admits  that  the 
contract  of  hiring  was  entered  into  on  or  about  the  2d  day  of  July, 
1898,  the  testimony  on  both  sides  shows  that  a  complete  agreement 
in  respect  to  the  letting  of  the  team  was  made  about  two  weeks 
earlier.  That  agreement  did  not  bind  the  defendant  to  drive  to 
Haverstraw  by  the  shortest  route.  It  left  him  at  liberty  to  pursue 
any  usually  traveled  road  which  people  were  accustomed  to  take 
who  desired  to  go  from  Monsey  to  Haverstraw.  The  voluntary 
statement  on  his  part,  when  the  team  was  brought  to  his  residence 
on  the  3d  of  July,  that  he  proposed  to  go  direct  to  Haverstraw,  did 
not,  under  the  circumstances,  in  my  opinion,  become  a  binding  part 
of  the  contract  of  hiring;  but,  if  I  am  wrong  in  this,  I  am  never- 
theless of  opinion  that  the  use  of  the  word  "direct"  did  not  neces- 
sarily imply  an  engagement  to  go  by  the  very  shortest  way.  It 
should  be  regarded  as  signifying  merely  the  defendant's  intention 
to  proceed  by  some  usual  and  expeditious  route,  without  diverg- 
ing from  it. 

In  this  view  it  becomes  immaterial  whether  the  contract  was  to 
drive  direct  to  Haverstraw,  or  merely  to  drive  to  Haverstraw.  In 
neither  aspect  of  the  case  does  the  evidence  establish  any  sub- 
stantial departure  from  the  terms  of  the  contract.  The  doctrine 
that  a  person  who  hires  a  horse  for  a  specified  journey  is  liable 
for  conversion  if  he  drives  the  horse  further  than  the  stipulated 
journey,  or  on  another  and  different  trip,  cannot  be  pressed  so  far 
as  to  make  the  hirer  chargeable  as  for  a  tort,  merely  by  reason  of 
slight  and  immaterial  departures  from  the  general  course  of  the  di- 
rection outlined  in  the  contract.  This  qualification  of  the  doctrine 
was  recognized  by  the  learned  trial  judge,  who  properly  charged 
the  jury  that  there  must  be  a  substantial  and  material  departure 
from  the  contract  of  hiring  in  order  to  render  his  plea  of  infancy 
unavailable  to  the  defendant. 

But,  in  my  opinion,  the  defendant  was  entitled  to  a  dismissal  at 
the  close  of  the  evidence  on  both  sides,  and  the  case  should  not 
have  been  submitted  to  the  jury  at  all.  The  rule  applicable  to  the 
case  cannot  be  better  stated  than  it  is  in  the  language  of  Chancellor 


284  INFANTS 

Kent  in  Campbell  v.  Stakes,  2  Wend.  137,  19  Am.  Dec.  561,  where 
he  says :  "The  contract  of  an  infant  is  not  void,  but  is  voidable  at 
the  election  of  the  infant.  If  a  horse  is  let  to  him  to  go  a  journey, 
there  is  an  implied  promise  that  he  will  make  use  of  ordinary  care 
and  diligence  to  protect  the  animal  from  injury,  and  return  him  at 
the  time  agreed  upon.  A  bare  neglect  to  do  either  would  not  sub- 
ject him  or  an  adult  to  an  action  of  trespass,  the  contract  remaining 
in  full  force.  But,  if  the  infant  does  any  willful  and  positive  act, 
which  amounts  to  an  election  on  his  part  to  disaffirm  the  contract, 
the  owner  is  entitled  to  the  immediate  possession.  If  he  willfully 
and  intentionally  injures  the  animal,  an  action  of  trespass  lies 
against  him  for  the  tort."  See,  also,  Moore  v.  Eastman,  1  Hun, 
578,  and  cases  there  cited. 

It  is  essential,  to  hold  an  infant  for  trespass  in  a  suit  like^  this, 
to  show  that  the  injury  to  the  horse  was  willful  and  intentional. 
A  mere  lack  of  moderation  in  driving,  and  a  failure  to  observe  due 
care,  where  there  is  no  willful  and  intentional  injury,  will  not  suf- 
fice to  render  an  infant  liable.  As  Chief  Justice  Cooley  says:  "If 
case  be  brought  against  an  infant  for  the  immoderate  use  and  want 
of  care  of  a  horse  which  has  been  bailed  to  him,  infancy  is  a  good 
defense;  the  gravamen  of  the  complaint  being  merely  a  breach 
of  the  implied  contract  of  bailment."    Cooley,  Torts  (2d  Ed.)  123. 

There  is  no  evidence  in  the  present  case  sufficient  to  warrant  a 
finding  that  the  injuries  which  the  plaintiff's  team  sustained  were 
intentionally  inflicted  by  the  defendant.  On  the  contrary,  it  is 
tolerably  plain  that  the  death  of  one  of  the  Horses  and  the  sickness 
of  the  other  were  simply  due  to  the  fact  that  they  were  driven  a 
long  distance  during  the  hottest  portion  of  an  exceptionally  hot  day 
in  midsummer.  The  only  testimony  tending  to  show  that  there 
had  been  a  material  departure  from  the  terms  of  the  contract  by 
driving  to  Nyack  instead  of  to  Haverstraw  was  furnished  by  the 
alleged  admission  of  the  defendant  to  that  effect  immediately  after 
the  death  of  the  plaintiff's  horse.  This  admission,  however,  was 
fully  explained  by  the  defendant,  who  said  that  he  was  frightened 
and  excited  at  the  time  of  the  accident,  and  might  have  said  to  the 
plaintiff's  representative  at  the  livery  stable  that  he  went  to  Nyack 
instead  of  Haverstraw,  but  that,  if  he  did  so,  he  meant^  New  City, 
and  not  Nyack.  This  statement,  taken  in  connection  with  his  own 
positive  denial  and  that  of  his  friend,  and  the  proof  on  both  sides 
that  they  had  been  to  Haverstraw,  and  spent  the  afternoon  there, 
did  not  leave  more  than  a  scintilla  of  evidence  in  the  case  to  show 
that  the  team  had  been  driven  to  Nyack. 

Upon  this  record  no  verdict  based  on  a  finding  that  the  defend- 
ant drove  to  Nyack  instead  of  Haverstraw  could  be  sustained  for 
a  moment.  I  think  it  is  clear  that  whatever  liability  can  be  pred- 
icated upon  the  defendant's  management  of  the  plaintiff's  team 


LIABILITY    OF   INFANTS    FOR    TORTS  285 

arises  out  of  contract,  instead  of  tort,  and  to  this  liability  his  infancy 
constituted  a  complete  defense.  I  am  therefore  in  favor  of  revers- 
ing the  judgment.  Judgment  and  order  reversed,  and  new  trial 
granted. 

CHURCHILL  V.  WHITE. 

(Supreme  Court  of  Nebraska,  1899.    58  Neb.  22,  78  N.  W.  369, 

76  Am.  St.  Rep.  64.) 

NoRVAL,  J.^^  This  was  an  action  by  George  M.  White  against 
Howard  Churchill  to  recover  damages  to  plaintiff's  buggy,  alleged 
to  have  been  caused  by  the  wrongful  act  of  the  defendant.  From 
a  judgment  for  $60,  entered  on  a  verdict  for  plaintiff,  the  defend- 
ant has  prosecuted  this  error  proceeding. 

The  first  assignment  of  error  challenges  the  sufficiency  of  the 
petition  filed  in  the  court  below,  and  upon  which  the  cause  was 
tried.  Plaintiff,  for  a  cause  of  action,  alleges,  in  substance  and  ef- 
fect, that  plaintiff  is  engaged  in  the  livery  business  at  Clay  Center, 
furnishing  horses,  harness,  buggies,  etc.,  for  hire  to  those  who  may 
desire  the  same ;  that  the  defendant  is  a  minor  of  the  age  of  19 
years,  residing  with  his  father  near  the  town ;  that  on  October 
23,  1894,  defendant  hired  from  plaintiff  a  livery  rig,  consisting  of 
a  span  of  horses,  a  set  of  harness,  and  a  two-seated  covered  buggy, 
to  go  four  or  five  miles  immediately  south  of  Clay  Center,  to  a 
dance  at  the  residence  of  one  A.  R.  Baker,  and  agreed  to,  and  did, 
pay  plaintiff,  as  use  for  said  team,  harness,  and  buggy,  the  sum  of 
$1.50;  that  defendant,  after  obtaining  possession  of  said  rig,  drove 
the  same  to  the  town  of  Harvard,  situate  2i/^  miles  west  and  6^^. 
miles  north  of  Clay  Center;  thence,  after  obtaining  or  receiving 
other  passengers,  he  drove  to  said  Baker's  residence,  where  he  re- 
mained a  few  minutes,  and  drove  the  rig,  with  five  passengers,  di- 
rectly west  2%  miles,  thence  north  III/2  miles,  to  Harvard,  and 
thence  to  Clay  Center;  that  the  defendant,  while  said  rig  was  in 
his  possession,  and  being  driven  out  of  the  line  of  the  route  from 
Clay  Center  to  the  place  of  the  dance,  and  on  the  return  trip  from 
Baker's  to  the  town  of  Harvard,  permitted  the  buggy  to  upset, 
and  the  team  to  run  several  rods,  thereby  breaking  the  buggy  in 
numerous  places,  described  with  great  particularity  in  the  petition, 
cutting  and  bruising  the  heel  of  one  of  the  horses;  that  the  team 
was  overdriven ;  and  that  defendant  drove  the  rig  in  a  direction, 
and  used  the  same  for  a  purpose,  dift'ercnt  than  that  for  which  it 
was  hired.  By  reason  thereof  plaintiff'  has  been  damaged  in  the 
sum  of  $100. 

The  contention  of  defendant  below  (plaintiff  herein)  is  that  the 
action  is  founded  upon  a  contract  with  an  infant,  and  therefore  no 

81  Part  of  the  opinio*<  Is  omitted. 


286  INFANTS 

recovery  against  him  can  be  had.  While,  ordinarily,  infants  aie 
not  liable  on  their  contracts,  except  for  necessaries,  they  are  an- 
swerable for  their  torts.  In  10  Am.  &  Eng.  Enc.  Law,  668,  669,  the 
rule  is  stated  thus:  "An  infant  is  liable  for  all  injuries  to  prop- 
erty or  person  wrongfully  committed  by  him.  His  privilege  of  in- 
fancy is  given  to  him  as  a  shield,  and  not  as  a  sword,  and  it  cannot 
be  used  for  protection  against  the  consequences  of  wrongful  acts ; 
for,  where  civil  injuries  are  committed  by  force,  the  intent  of  the 
perpetrator  is  not  regarded.  *  *  *  Although  an  infant  is  liable 
for  his  torts,  he  is  not  liable  for  the  tortious  consequences  of  his 
breach  of  contract.  Whether  the  form  of  the  action  be  contract  or 
tort,  the  infant  cannot  be  held  for  a  mere  violation  of  contract,  but 
the  contract  cannot  avail  if  the  infant  goes  beyond  the  scope  of  it. 
The  tort  must  be  a  distinct  and  substantive  wrong  in  itself,  even 
though  it  grow  out  of  a  contract,  to  make  the  infant  liable.  The 
contract  must  be  generally  put  in  proof  to  support  the  action,  but 
that  is  because  the  tort,  inasmuch  as  it  is  committed  by  departing 
from  the  terms  of  the  contract,  cannot  be  shown  without  showing 
the  contract,  and  not  because  the  contract  is  otherwise  involved." 

The  text  is  abundantly  sustained  by  judicial  decisions.  Although 
no  recovery  can  be  had  against  an  infant  for  a  breach  of  contract, 
the  principle  is  well  recognized,  and  has  been  often  applied,  that 
he  is  liable  for  a  tort  committed  by  him,  notwithstanding  it  may 
have  arisen  out  of,  or  in  some  way  may  have  been  connected  with, 
a  contract.  *  *  *  In  Freeman  v.  Boland,  14  R.  I.  39,  51  Am. 
Rep.  340,  it  was  held  that  where  an  infant  hires  a  horse  and  buggy 
of  a  keeper  of  a  livery  stable  to  go  to  a  designated  place,  and  drives 
beyond  the  place  or  in  another  direction,  and  injures  the  horse, 
the  infant  is  liable  therefor.  To  the  same  effect  are  Homer  v. 
Thwing,  3  Pick.  (Mass.)  492;  Rotch  v.  Hawes,  12  Pick.  (Mass.) 
136,  22  Am.  Dec.  414;  Hall  v.  Corcoran,  107  Mass.  251,  9  Am.  Rep. 
30;   Fish  V.  Ferris,  3  E.  D.  Smith  (N.  Y.)  567. 

In  Towne  v.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85,  an  infant  who 
hired  a  horse  to  drive  to  an  agreed  place,  23  miles  distant,  returned 
by  a  circuitous  route,  which  nearly  doubled  the  distance,  and  stop- 
ped at  a  house  on  the  way,  leaving  the  horse  standing  out  of  doors 
during  the  night,  without  food,  and  it  died  from  overdriving  and 
exposure.  It  was  decided  that  the  infant  was  liable  in  damages, 
by  reason  of  his  having  departed  from  the  object  of  his  bailment. 
Redfield,  J.,  in  delivering  the  unanimous  opinion  of  the  court,  said: 
"So  long  as  the  defendant  kept  within  the  terms  of  the  bailment, 
his  infancy  was  a  protection  to  him,  whether  he  neglected  to  take 
proper  care  of  the  horse  or  to  drive  him  moderately ;  but,  when  he 
departs  from  the  object  of  the  bailment,  it  amounts  to  a  conversion 
of  the  property,  and  he  is  liable  as  much  as  if  he  had  taken  the 
horse  in  the  first  instance  without  permission.    And  this  is  no  hard- 


LIABILITY   OF   INFANTS   FOR   TORTS  287 

ship;  for  the  infant  as  well  knows  that  he  is  perpetrating  a  posi- 
tive and  substantial  wrong  when  he  hires  a  horse  for  one  purpose, 
and  puts  him  to  another,  as  he  does  when  he  takes  another's  prop- 
erty by  way  of  trespass."  This  case  was  cited  by  the  same  court, 
and  the  principle  applied,  in  Ray  v.  Tubbs,  50  Vt.  688,  28  Am. 
Rep.  519. 

Eaton  V.  Hill,  50  N.  H.  235,  9  Am.  Rep.  189,  was  an  action 
against  an  infant  to  recover  damages  for  having  so  carelessly  and 
immoderately  driven  plaintiff's  horse,  which  he  had  hired,  as  to 
cause  the  animal's  death.  The  plea  was  infancy.  Bellows,  C.  J., 
in  passing  upon  the  question,  employed  the  language  following: 
"We  think,  then,  that  the  doctrine  is  well  established  that  an  in- 
fant bailee  of  a  horse  is  liable  for  any  positive  and  willful  tort  done 
to  the  animal  distinct  from  a  mere  breach  of  contract,  as  by  driv- 
ing to  a  place  other  than  the  one  for  which  he  is  hired,  refusing  to 
return  him  on  demand  after  the  time  has  expired,  willfully  beating 
him  to  death,  and  the  like ;  so,  if  he  willfully  and  intentionally  drive 
him  at  such  an  immoderate  speed  as  to  seriously  endanger  his  life, 
knowing  that  it  will  do  so.  *  *  *  When  the  infant  stipulates 
for  ordinary  skill  and  care  in  the  use  of  the  thing  bailed,  but  fails 
from  want  of  skill  and  experience,  and  not  from  any  wrongful 
intent,  it  is  in  accordance  with  the  policy  of  the  law  that  his  priv- 
ilege based  upon  his  want  of  capacity  to  make  and  fully  under- 
stand such  contracts  should  shield  him.  *  *  *  g^  when,  on 
the  other  hand,  the  infant  wholly  departs  from  his  character  of 
bailee,  and,  by  some  positive  act,  willfully  destroys  or  injures  the 
thing  bailed,  the  act  is  in  its  nature  essentially  a  tort,  the  same 
as  if  there  had  been  no  bailment,  even  if  assumpsit  might  be  main- 
tained in  case  of  an  adult,  on  a  promise  to  return  the  thing  safely." 

In  the  case  in  hand  the  petition  discloses,  and  the  evidence  ad- 
duced by  plaintiff  on  the  trial  tends  strongly  to  establish,  that  the 
tort  of  the  defendant  was  not  committed  under  the  contract,  but 
by  absolutely  abandoning  or  disregarding  it,  or  in  departing  from 
the  terms  thereof.  The  petition  is  not  framed  upon  the  theory  of 
a  breach  of  contract,  but  for  the  tort,  and  contains  sufficient  aver- 
ments to  constitute  a  cause  of  action,  notwithstanding  the  infancy 
of  the  defendant. 

The  seventh  instruction  is  criticised,  which  reads  as  follows: 
"You  are  instructed,  gentlemen,  that,  so  far  as  this  case  is  con- 
cerned, the  infancy  of  the  defendant  does  not  affect  the  liability. 
The  rule  that  one  who  hires  property  of  this  kind  for  one  purpose, 
and  uses  it  for  another  or  dift'erent  purpose  from  that  contemplated 
by  the  parties  in  the  contract  of  hiring,  is  liable  for  any  harm  that 
may  happen  it  while  he  is  so  using  it,  applies  to  minors  as  well  as 
to  adults."  This  instruction  harmonizes  with  the  views  which  we 
have  already  expressed,  and  is  within  the  doctrine  announced  in 


288  INFANTS 

the  cases  cited  above.  This  portion  of  the  charge  did  not  with- 
draw from  the  consideration  of  the  jury  whether  or  not  the  defend- 
ant used  the  team  and  buggy  for  a  purpose  different  from  that 
contemplated  by  the  contract  of  hiring.  Such  question  was  fairly 
submitted  to  the  jury  by  other  instructions,  which  expressly  ad- 
vised the  jury  there  could  be  no  recovery  if  the  defendant  did  not 
hire  the  property  for  a  specific  and  designated  trip  or  route  of 
travel,  or  to  drive  to  a  specific  place. 

Under  the  theory  of  neither  party  was  the  infancy  of  the  defend- 
ant material  or  an  important  consideration,  since  it  could  not  in- 
fluence the  decision  either  way.  If  the  team  was  hired  to  drive 
to  Mr.  Baker's,  as  plaintiff  insisted  was  the  agreement  of  the  par- 
ties, then  it  was  driven  nearly  50  miles,  instead  of  10  miles,  the 
distance  from  Clay  Center  to  Baker's,  and  return,  by  the  usual 
route  of  travel.     *     *     *    Judgment  affirmed.^^ 

3  2  Liability  of  parent  for  tort  of  infant,  see  LessofC  v.  Gordon,  ante,  p.  174, 
and  Brittingham  v.  Stadiem,  ante,  p.  177. 


PERSONS  NON    COMPOTES   MENTIS   AND   ALIENS  289 

PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS 
I.  Contracts  of  Insane  Persons  * 


SWARTWOOD  V.  CHANCE. 
(Supreme  Court  of  Iowa,  1906.     131  Iowa,  714,  109  N.  W.  297.) 

Suit  in  equity  to  set  aside  and  cancel  a  deed  on  account  of  the 
mental  incapacity  of  the  grantor,  the  plaintiff's  ward.  There  was 
a  judgment  dismissing  the  plaintiff's  action,  and  quieting  the  title 
in  the  defendant.    The  plaintiff  appeals. 

Sherwin,  J.2  Prior  to  January  4,  1905,  Roy  A.  Swartwood,  the 
plaintiff's  ward,  was  the  owner  of  80  acres  of  land,  which  was  then 
of  the  value  of  from  $3,200  to  $3,600.  The  80  was  incumbered 
by  a  mortgage  of  $2,000  on  which  there  was  $100  interest  due. 
About  said  date  Swartwood  traded  his  equity  in  the  land  to  the 
defendant  on  a  valuation  of  $4,000  for  the  land,  or  $1,900  for  his 
equity  therein,  taking  in  exchange  therefor  a  Norman  stallion  at 
the  agreed  price  of  $1,800  and  the  balance  in  other  personal  prop- 
erty. After  the  trade  had  been  completed  by  the  transfer  of  the 
land  and  personal  property,  the  plaintiff  was  appointed  guardian 
of  Roy  A.  Swartwood  and  thereafter  brought  this  action  to  set 
aside  the  deed  and  rescind  the  contract,  alleging  in  his  petition  that 
his  ward  was  insane  at  the  time  of  the  trade  and  offering  to  place 
the  defendant  in  statu  quo. 

The  important  and  controlling  question  is  purely  of  fact,  for,  if 
Roy  A.  Swartwood  was  mentally  incapable  of  making  a  valid 
trade,  the  conveyance  to  the  defendant  should  be  set  aside  under 
the  rule  of  our  decisions  in  similar  cases.  It  is  the  rule  of  this 
court  that  an  executed  contract  may  be  avoided  upon  the  ground 
that  the  party  was  incapable  of  contracting,  when  the  other  party's 
property  may  be  restored  to  him  and  he  be  placed  in  statu  quo. 
Corbit  V.  Smith,  7  Iowa,  60,  71  Am.  Dec.  431 ;  Behrens  v.  McKin- 
zie,  23  Iowa,  333,  92  Am.  Dec.  428;  Ashcraft  v.  De  Armond,  44 
Iowa,  234;  Alexander  by  his  Guardian  v.  Haskins  et  al.,  68  Iowa, 
7Z,  25  N.  W.  935 ;  Warfield  v.  Warfield,  76  Iowa,  633,  41  N.  W. 
383.  And  this  rule  seems  to  obtain  whether  the  other  party  knew 
of  the  disability  or  not,  and  regardless  of  the  fairness  of  the  trans- 
action or  the  fullness  of  the  consideration.     See  cases  cited  above. 

1  For  discussion  of  principles,  see  Tilfaiiy,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
230-234. 
2  Part  of  the  opinion  is  omitted. 
COOLEY  P.&  D.Rel.— 19 


290  PERSONS   NON    COMPOTES   MENTIS  AND   ALIENS 

To  avoid  a  contract  or  deed,  however,  on  the  ground  of  insan- 
ity, it  must  be  satisfactorily  shown  that  the  party  was  incapable 
of  transacting  the  particular  business  in  question.  It  is  not  enough 
to  show  that  he  was  the  subject  of  delusions  not  affecting  the  sub- 
ject-matter of  the  transaction,  nor, that  he  was,  in  other  respects, 
mentally  weak.  A  party  cannot  avoid  a  contract,  free  from  fraud 
or  undue  influence,  on  the  ground  of  mental  incapacity  unless  it 
be  shown  that  his  insanity  was  of  such  character  that  he  had  no 
reasonable  perception  or  understanding  of  the  nature  and  terms  of 
the  contract.  Campbell  v.  Campbell,  51  Iowa,  713,  2  N.  W.  541; 
Burgess  v.  Pollock,  53  Iowa,  273,  5  N.  W.  179,  36  Am.  Rep.  218; 
Elwood  v.  O'Brien,  105  Iowa,  239,  74  N.  W.  740. 

We  have  read  the  record  in  this  case  with  care  and  are  convinced 
that  it  wholly  fails  to  show  the  mental  incapacity  necessary  to 
avoid  the  deed.  *  *  *  The  judgment  of  the  trial  court  is  right, 
and  it  is  affirmed. 


II.  Contracts  of  Drunken  Persons  * 


CAMERON-BARKLEY  CO.  v.  THORNTON  LIGHT  & 

POWER  CO. 

(Supreme  Court  of  North  Carolina,  1905.    138  N.  C.  365,  50  S.  E.  695,  107  Am. 

St.  Rep.  532.) 

Action  by  the  Cameron-Barkley  Company  against  the  Thornton 
Light  &  Power  Company.  From  a  judgment  for  defendant,  plain- 
tiff appeals. 

Walker,  J.*  This  action  was  brought  to  recover  damages  for 
the  breach  of  a  contract  whereby  the  plaintiff  agreed  to  sell,  and 
the  defendant  to  buy,  a  Corliss  engine.  The  case  was  heard  at  a 
former  term  (137  N.  C.  99,  49  S.  E.  76)  upon  a  petition  for  a  cer- 
tiorari. We  ordered  the  writ  to  issue,  so  that  the  plaintiff's  excep- 
tions and  assignments  of  error  could  be  more  accurately  stated. 
*     *     * 

The  defendant,  in  its  answer,  admitted  that  its  president  had 
signed  a  contract,  and  pleaded  specially  that  at  the  time  of  signing 
it  he  was  so  drunk  that  he  did  not  have  sufficient  mental  capacity 
to  contract  with  the  plaintiff  for  the  engine.     *     *     * 

The  question  presented  for  our  consideration  arises  upon  an  ex- 
ception to  the  charge  of  the  court  regarding  the  drunkenness  of  the 

»  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  ReL  (3d  Ed.) 
§§  242,  243. 

*  Part  of  the  opinion  is  omitted. 


CONTRACTS    OF    DRUNKEN    PERSONS  291 

plaintiff's  agent,  and  its  sufficiency  to  avoid  the  contract.  It  is 
held  by  some  authorities  to  be  a  principle  of  the  common  law  that 
every  contract  which  a  man  non  compos  mentis  makes  is  avoidable, 
and  yet  shall  not  be  avoided  by  himself,  because  it  is  a  maxim 
in  law  that  no  man  of  full  age  shall  be,  in  any  plea  to  be  pleaded 
by  himself,  received  by  the  law  to  stultify  himself,  and  to  set  up  his 
own  disability  in  avoidance  of  his  acts.  Beverly's  Case,  4  Rep.  123. 
And  Coke,  as  appears  in  his  Institutes,  was  of  the  same  opinion: 
"As  for  a  drunkard  who  is  voluntarius  dzemon,  he  hath  (as  hath 
been  said)  no  privilege  thereby,  but  what  hurt  or  ill  soever  he  doth, 
his  drunkenness  doth  aggravate  it."  Co.  Litt.  247a.  But  Black- 
stone  observes  that  this  doctrine  sprung  from  loose  authorities, 
and  he  evidently  agrees  with  Fitzherbert,  who  rejects  the  maxim  as 
being  contrary  to  reason.     2  Blk.  291. 

Whatever  was  the  true  principle  of  the  common  law,  as  anciently 
understood,  there  can  be  no  doubt  that  since  the  reign  of  Edward 
III,  if  not  since  the  time  of  Edward  I,  it  has  been  settled,  accord- 
ing to  the  dictates  of  good  sense  and  common  justice,  that  a  con- 
tract made  by  a  person  so  destitute  of  reason  as  not  to  know  the 
nature  and  consequences  of  his  contract,  though  his  incompetence 
be  produced  by  intoxication,  is  void,  and  even  though  his  condition 
was  caused  by  his  voluntary  act,  and  not  procured  through  the 
circumvention  of  the  other  party.  Mere  imbecility  of  mind  is  not 
sufficient  as  a  ground  for  avoiding  the  contract,  when  there  is  not 
an  essential  privation  of  the  reasoning  faculties  or  an  incapacity  of 
understanding.  2  Kent,  451.  This  court  has  adopted  Coke's  defi- 
nition, that  a  person  has  sufficient  mental  capacity  to  make  a  con- 
tract if  he  knows  what  he  is  about.  Moffit  v.  Witherspoon,  32 
N.  C.  185;  Paine  v.  Roberts,  82  N.  C.  451.  And  it  has  been  held 
not  error  to  charge  that  the  measure  of  capacity  is  the  ability  to 
understand  the  nature  of  the  act  in  which  he  is  engaged,  and  its  full 
extent  and  effect.    Cornelius  v.  Cornelius,  52  N.  C.  593. 

The  doctrine  that  a  party  may  plead  his  own  disability  to  de- 
feat the  alleged  contract  arises  out  of  the  very  nature  of  a  con- 
tract, which  requires  that  the  minds  of  the  parties  should  meet  to 
a  common  intent,  and,  if  one  of  them  has  not  "the  agreeing  mind," 
the  contract  cannot  be  formed.  In  Hawkins  v.  Bone,  4  F.  &  F. 
311,  Chief  Baron  Pollock  said:  "But  the  law  of  England  is  that  a 
man  is  not  liable  on  a  contract  alleged  to  have  been  made  by  him 
in  a  state  in  which  he  was  not  really  capable  of  contracting.  A 
contract  involves  a  mutual  agreement  of  two  minds,  and,  if  a  man 
has  no  mind  to  agree,  he  cannot  make  a  valid  contract."  And  the 
question  at  last  is  whether  he  was  wholly  incapable  of  any  reflec- 
tion or  deliberate  act,  so  that  in  fact  he  was  unconscious  of  the 
nature  of  the  particular  transaction.  It  is  not  necessary  that  he 
should  be  able  to  act  wisely  or  discreetly,  nor  to  effect  a  good  bar- 
gain, but  he  must  at  least  know  what  he  is  doing. 


292  PERSONS   NON    COMPOTES   MENTIS    AND    ALIENS 

So  far  as  the  legal  incapacity  is  concerned,  it  can  make  no  dif- 
ference from  what  cause  it  proceeded — whether  by  the  party's  own 
imprudence  or  misconduct  or  otherwise.  It  is  the  state  and  con- 
dition of  the  mind  itself  that  the  law  regards,  and  not  the  causes 
that  produced  it.  If  from  any  cause  his  reason  has  been  dethroned, 
his  disability  to  contract  is  complete.  Bliss  v.  Railroad,  24  Vt. 
424.  The  Master  of  the  Rolls  (Sir  William  Grant),  in  Cook  v. 
Clayworth,  18  Vesey,  15,  said:  "As  to  that  extreme  state  of  intox- 
ication that  deprives  a  man  of  his  reason,  I  apprehend  that,  even 
at  law,  it  would  invalidate  a  deed  obtained  from  him  while  in  that 
condition."  Lord  Ellenborough,  in  Pitt  v.  Smith,  3  Camp.  33,  thus 
states  the  doctrine :  "You  have  alleged  that  there  was  an  agree- 
ment between  the  parties,  and  this  allegation  you  must  prove,  as 
it  is  put  in  issue  by  the  plea  of  not  guilty ;  but  there  was  no  agree- 
ment between  the  parties  if  the  defendant  was  intoxicated  in  the 
manner  supposed  when  he  signed  this  paper.  He  had  not  an  agree- 
ing mind.  Intoxication  is  good  evidence  upon  a  plea  of  non  est 
factum  to  a  deed,  of  non  concessit  to  a  grant,  and  of  non  assumpsit 
to  a  promise." 

The  authorities  sustaining  the  view  of  the  law  we  have  stated 
and  adopted  are  quite  numerous.  Clark  on  Contracts  (2d  Ed.)  p. 
186;  Parsons  on  Cont.  (9th  Ed.)  p.  444;  Matthews  v.  Baxter,  L. 
R.  Exch.  132;  Webster  v.  Woodford,  3  Day  (Conn.)  90;  Van 
Wyck  v.  Brasher,  81  N.  Y.  260;  Bursinger  v.  Bank,  67  Wis.  75, 
30  N.  W.  290,  58  Am.  Rep.  848;  Bush  v.  Breinig,  113  Pa.  310,  6 
Atl.  86,  57  Am.  Rep.  469;  Bates  v.  Ball,  72  111.  108;  Wright  v. 
Fisher,  65  Mich.  275,  32  N.  W.  605,  8  Am.  St.  Rep.  886;  14  Cyc. 
1103;  17  A.  &  E.  Enc.  399.  It  was  held  in  King's  Ex'rs  v.  Bry- 
ant's Ex'rs,  3  N.  C.  394,  that  if  a  man  was  so  drunk  at  the  time 
of  signing  a  bond  that  he  did  not  know  what  he  was  doing,  and 
while  in  that  condition  he  was  induced  to  sign  the  instrument,  it 
was  a  fraud  upon  him  which  vitiated  the  bond,  even  in  an  action 
at  law  upon  it;  and  to  the  same  effect  is  the  decision  of  the  court 
in  Gore  v.  Gibson,  13  M.  &  W.  (Exch.)  623 — opinion  of  Parke,  B. 
In  the  latter  case.  Pollock,  C.  B.,  said:  "Although  formerly  it  was 
considered  that  a  man  should  be  liable  upon  a  contract  made  by 
him  when  in  a  state  of  intoxication,  on  the  ground  that  he  should 
not  be  allowed  to  stultify  himself,  the  result  of  the  modern  author- 
ities is  that  no  contract  made  by  a  person  in  that  state,  when  he 
does  not  know  the  consequences  of  his  act,  is  binding  upon  him. 
That  doctrine  appears  to  me  to  be  in  accordance  with  reason  and 
justice."     *     *     *     No  error. 


ALIENS  293 


III.  Aliens' 


LEHMAN  V.  STATE  ex  rel.  MILLER. 
(Appellate  Court  of  Indiana,  Division  No.  2,  1909.    88  N.  E.  365.) 

Suit  by  the  State,  on  the  relation  of  Miller,  Attorney  General, 
against  Catherine  Lehman  and  others  to  enforce  the  escheat  of 
property.    From  a  judgment  for  the  State,  defendants  appeal. 

CoMSTOCK,  P.  J.  On  June  7,  1904,  the  appellee,  the  state  of 
Indiana,  on  the  relation  of  Charles  W.  Miller,  its  Attorney  General, 
filed  its  second  amended  information  in  the  court  below  to  recover, 
under  section  3941,  Burns'  Ann.  St.  1908,  of  the  appellants,  and  to 
quiet  title  to  certain  real  estate  in  the  city  of  Indianapolis,  which 
was  owned  at  the  time  of  his  death  by  one  John  Lehman,  who  died 
intestate,  a  naturalized  citizen  of  the  United  States  and  a  resident 
of  Marion  county,  Ind.,  on  July  21,  1894,  and  who  left  surviving- 
him  certain  heirs,  all  of  whom  were  then,  and  such  of  them  as  are 
still  alive  and  the  descendants  of  those  who  are  dead  are  still,  resi- 
dents and  citizens  of  the  republic  of  Switzerland.  A  trial  was  had 
by  the  court,  and  judgment  rendered  in  favor  of  the  appellee.  The 
errors  assigned,  and  not  waived,  challenge  the  correctness  of  each 
of  the  conclusions  of  law  1,  2,  and  3. 

Section  3941,  Burns'  Ann.  St.  1908  (section  3333,  Burns'  Ann.  St. 
1901),  or  so  much  thereof  as  is  necessary  for  the  determination  of 
the  question  here  involved,  is  as  follows:  "All  other  aliens  [other 
than  those  having  declared  their  intention,  etc.,  as  provided  in  sec- 
tion 3940]  may  take  and  hold  land  by  devise  and  descent  only,  and 
may  convey  the  same  at  any  time  within  five  years  thereafter,  and 
no  longer,  and  all  lands  so  left  and  remaining  unconveyed  at  the 
end  of  five  years  shall  escheat  to  the  state  of  Indiana.     *     *     *  " 

It  is  claimed  by  appellants  that  said  section  (3941,  Burns'  Ann. 
St.  1908;  section  3333,  Burns'  Ann.  St.  1901)  is  in  conflict  with 
article  5  of  the  treaty  between  the  United  States  and  the  Swiss 
Confederation,  ratified  November  8,  1855  (11  Stat.  590),  which 
reads  as  follows : 

"Art.  5.  The  citizens  of  each  one  of  the  contracting  parties  shall 
have  power  to  dispose  of  their  personal  property  within  the  juris- 
diction of  the  other,  by  sale,  testament,  donation,  or  in  any  other 
manner;  and  their  heirs,  whether  by  testament,  or  ab  intestato,  or 
their  successors,  being  citizens  of  the  other  party,  shall  succeed 
to  the  said  property,  or  inherit  it,  and  they  may  take  possession 

6  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (.^dEd.)  §f 
247-252. 


294  PERSONS  NON    COMPOTES  MENTIS  AVD  ALIENS 

thereof,  either  by  themselves,  or  by  parties  acting  for  them ;  they 
may  dispose  of  the  same  as  they  may  think  proper,  paying  no  other 
charges  than  those  to  which  the  inhabitants  of  the  country  wherein 
the  said  property  is  situated  shall  be  liable  to  pay  in  a  similar  case. 
*  *  *  The  foregoing  provisions  shall  be  applicable  to  real  es- 
tate situated  within  the  states  of  the  American  Union,  or  within 
cantons  of  the  Swiss  Confederation,  in  which  foreigners  shaH  be 
entitled  to  hold  or  inherit  real  estate.  But  in  case  real  estate  situ- 
ated within  the  territories  of  one  of  the  contracting  parties  shall 
fall  to  a  citizen  of  the  other  party,  who,  on  account  of  his  being  an 
alien,  could  not  be  permitted  to  hold  such  property  in  the  state 
or  canton  in  which  it  may  be  situated,  there  shall  be  accorded  to 
the  said  heir,  or  other  successor,  such  term  as  the  laws  of  the  state 
or  canton  will  permit  to  sell  such  property ;  he  shall  be  at  liberty 
at  all  times  to  withdraw  and  export  the  proceeds  thereof  without 
difficulty  and  without  paying  to  the  government  any  other  charges 
than  those  which,  in  a  similar  case,  would  be  paid  by  an  inhab- 
itant of  the  country  in  which  the  real  estate  may  be  situated." 

The  special  finding  of  facts  may  be  summarized  as  follows :    John 
Lehman,  a  native  of  Switzerland,  made  application  on  the   19th 
day  of  October,  1880,  and  became  a  citizen  of  the  United  States, 
and  of  the  state  of  Indiana,  and  during  all  of  said  period  until  his 
death  resided  in  the  county  of  Marion  in  said  state;  that  said  John 
Lehman  became  owner  of  certain  properties  in  the  years  1881,  1883. 
and  1888  by  deeds  of  conveyance ;   that  he,  from  the  dates  of  said 
several  conveyances  continuously  remained,  and  at  the  time  of  his 
death  was,  the  owner  in  fee  simple  of  said  several  pieces  of  real 
estate;  that  he  died  intestate  at  Indianapolis,  Ind.,  on  the  21st  day 
of  July,  1894,  leaving  surviving  him  as  his  only  heirs  at  law  certain 
heirs  (naming  them)  ;    that  all  of  the  defendants  hereto  were  at 
the  time  of  the  death  of  said  John  Lehman,  and  have  continuously 
thereafter  remained,  and  now  are,  residents  and  citizens  of  Swit- 
zerland;   that  his  estate  was  duly  administered,  and  the  adminis- 
trator discharged;    that  the  defendants  are  all,  and  are  the  sole 
and  only,  heirs  at  law  of  said  John  Lehman,  deceased,  and  there 
are  no  heirs  of  John  Lehman  now  or  heretofore  residents  of  the 
state  of  Indiana,  or  who  are,  or  at  any  time  have  been,  citizens  of 
the  United  States  of  America.    That  no  part  or  portion  of  said  real 
estate  above  described,  or  any  interest  in  the  same,  has  ever  been 
conveyed  by  either  or  any  of  the  defendants,  or  any  other  person, 
since  the  death  of  said  John  Lehman,  but  since  the  death  of  said 
John  Lehman,  his  heirs,  through  an  agent  in  Indianapolis,  have 
been  collecting  and  receiving  the  rents,  income,  and  profits  from 
said  real  estate  up  to  the  time  of  the  commencement  of  this  ac- 
tion, since  which  time  they  have  been  paid  to  a  receiver  heretofore 
appointed  in  this  cause,  and  the  defendants  claim  to  be  the  owners 


ALIENS  295 

of  said  real  estate  above  described  by  inheritance  from  said  John 
Lehman,  deceased,  as  aforesaid. 

Upon  the  above  finding  the  court  stated  its  conclusions  of  law, 
in  substance,  as  follows:  (1)  That  said  section  3941,  supra,  was 
not  in  conflict  with  any  provision  of  the  treaty  between  the  United 
States  and  Switzerland,  ratified  on,  to  wit,  November  8,  1855 ;  (2) 
that  the  real  estate  (described)  had  escheated  to  the  state  of  In- 
diana for  the  common  school  fund ;  (3)  that  the  claims  of  the 
defendants  are  a  cloud  upon  the  title  of  said  state  of  Indiana  to 
the  said  real  estate,  and  should  be  forever  quieted  and  confirmed 
against  the  claims  of  the  defendants,  etc. 

Appellant  insists  that  article  5  of  said  treaty  makes  provision 
for  two  distinct  classes  of  aliens,  to  wit:  Those  who  are,  by  the 
laws  of  the  state  or  canton,  entitled  to  hold  or  inherit  real  estate, 
and  those  who  on  account  of  being  aliens  are  not  permitted  to  hold 
real  estate;  that  the  treaty  recognizes  the  right  of  either  country 
to  deny  to  foreigners  the  right  to  hold  or  inherit  real  estate,  but 
by  the  provisions  of  said  treaty  where  they  do  inherit  their  rights 
are  governed  by  the  provisions  relating  to  personal  property,  and 
not  under  the  last  clause  thereof,  which  provides  for  a  limitation 
such  as  the  state  or  canton  may  establish.  Treaties  are  a  part  of 
the  supreme  law  of  the  land.  State  laws  must  give  way  to  treaties 
made  by  the  federal  government.  Lewis'  Sutherland,  Stat.  Const. 
§  22,  p.  38;  Blythe  v.  Hinckley,  127  Cal.  431,  59  Pac.  787;  Adams 
V.  Akerlund,  168  111.  632,  48  N.  E.  454;  Scharpf  v.  Schmidt,  172 
111.  255,  50  N.  E.  182.  Subject  to  the  provisions  of  the  organic 
law  of  the  state,  if  any,  relating  thereto  and  the  Constitution,  laws, 
and  treaties  of  the  United  States,  the  state,  through  its  General 
Assembly,  has  full  power  to  regulate  the  law  of  descent,  and  to 
determine  whether  aliens  shall  be  permitted  to  hold  real  estate, 
and,  if  so,  to  what  extent  and  under  what  circumstances. 

The  question  in  this  cause  is  whether  the  statute  in  question  is 
in  conflict  with  the  treaty  of  1850,  between  the  United  States  and 
the  Swiss  Confederation.  We  think  it  is  firmly  settled,  except  in 
so  far  as  limitations  have  been  placed  on  the  inherent  sovereignty 
of  the  states  by  treaty,  that  the  state  may  deny  aliens  the  privi- 
lege of  inheriting  lands;  and  it  follows  that,  when  it  grants  it, 
it  may  annex  to  the  grant  any  conditions  which  it  supposes  to  be 
required  by  its  interests  or  policy.  Donaldson  v.  State  ex  rel. 
Taylor  (Ind.)  67  N.  E.  1029;  Mager  v.  Grima,  8  How.  490,  12  L. 
Ed.  1168;  Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  Ed.  234;  Hauen- 
stein  v.  Lynham,  100  U.  S.  483,  25  L.  Ed.  628;  Hanrick  v.  Patrick, 
119  U.  S.  156,  7  Sup.  Ct.  147,  30  L.  Ed.  396;  Blythe  v.  Hinckley, 
180  U.  S.  233,  21  Sup.  Ct.  390,  45  L.  Ed.  557;  Wunderle  v.  Wun- 
derle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A.  84.  In  construing  stat- 
utes that  construction  is  favored  which  gives  effect  to  every  clause 


296  PERSONS   NON   COMPOTES  MENTIS   AND  ALIENS 

and  every  part  of  the  statute,  thus  producing  a  consistent  and, 
harmonious  whole.  A  construction  which  would  leave  without  ef- 
fect any  part  of  the  language  used  should  be  rejected  if  an  inter- 
pretation can  be  found  which  would  give  it  efifect.  26  Am.  &  Eng. 
Ency.  of  Law  (2d  Ed.).  In  negotiating  the  treaty  of  1850  the  fed- 
eral government,  recognizing  that  states  might  not  permit  aliens 
to  hold  real  estate,  provided  that  in  such  states  where  aliens  are 
not  "permitted  to  hold  such  property"  "there  shall  be  accorded  to 
the  said  heir,  or  other  successor,  such  term  as  the  laws  of  the  state 
or  canton  will  permit  to  sell  property,"  and  he  shall  be  at  liberty 
to  withdraw  and  export  the  proceeds  without  any  other  charges 
than  inhabitants  of  the  country  would  pay. 

A  distinction  is  made  in  the  treaty  between  the  words  "inherit" 
and  "hold."  The  statute  of  1881  in  this  state  made  a  distinction 
between  acquiring  and  holding  real  estate.  Acts  1881,  p.  84,  c.  8, 
§  1.  The  title  to  the  act  was:  "An  act  to  authorize  aliens  to  hold 
title  to  real  estate,  convey  the  same,"  etc.  Section  1  provided: 
"Natural  persons,  who  are  aliens,  whether  they  reside  in  the  United 
States,  or  any  foreign  country,  may  acquire,  hold  and  enjoy  real 
estate,"  etc.  In  section  1  of  the  act  of  1885,  in  controversy  here 
(Acts  1885,  p.  79,  c.  51;  section  3332,  Burns'  Ann.  St.  1894),  it  is 
provided :  "That  all  aliens  residing  in  the  state  of  Indiana,  who 
shall  have  declared  their  intentions  to  become  citizens  of  the  United 
States  conformably  to  the  laws  thereof,  may  acquire  and  hold  real 
estate  in  like  manner  as  citizens  of  this  state."  Section  2  of  the 
act  of  1885  (section  3333,  Burns'  Ann.  St.  1894)  reads:  "All  other 
aliens  may  take  and  hold  lands  by  devise  and  descent  only,  and 
may  convey  the  same  at  any  time  within  five  years,"  etc. 

A  distinction  is  made  between  "acquiring,"  "taking,"  and  "hold- 
ing." A  limitation  on  the  taking  or  acquiring  is  made.  An  alien 
not  residing  in  the  state,  and  who  has  not  made  a  declaration  of 
citizenship,  cannot  take  by  purchase,  but  can  take  only  by  devise 
and  descent.  Such  an  alien  can  hold  and  convey  only  for  a  limited 
period  of  five  years,  at  the  end  of  which  period  the  lands  shall  es- 
cheat. In  this  state  aliens  are  thus  entitled  to  inherit  for  a  lim- 
ited purpose  and  a  qualified  estate.  In  Donaldson  v.  State,  supra, 
it  is  pointed  out  that  the  power  to  take  by  descent  and  the  power 
to  transmit  by  descent  are  two  separate  and  distinct  powers ;  that 
the  alien  at  common  law  could  neither  take  nor  transmit  title  to 
real  property  by  descent;  that  his  power  to  do  either  is  depend- 
ent upon  the  statutes  of  the  state  in  which  the  real  estate  is  sit- 
uated. There  is  a  well-defined  meaning  to  the  word  "hold"  as  ap- 
plied to  real  estate.  Its  meaning  in  connection  with  the  title  to 
real  estate  is  sometimes  different  from  the  mode  of  acquisition. 
It  has  to  do  with  the  duration  or  tenure  of  the  estate. 

In  Runyan  v.  Coster,  14  Pet.  122,  10  L.  Ed.  382,  the  Supreme 


ALIENS 


297 


Court  makes  this  distinction,  and  says:  "The  doctrine  of  the  Su- 
preme Court  of  Pennsylvania,  in  the  case  of  Leazure  v.  Hillegas, 
7  Serg.  &  R.  (Pa.)  313,  is  directly  applicable  to  this  case.  The 
question  then  before  the  court  was  as  to  the  right  of  the  bank  of 
North  America  to  purchase,  hold,  and  convey  the  land  in  question, 
and  the  court  took  the  distinction  between  the  right  to  purchase 
and  the  right  to  hold  lands,  declaring  them  to  be  very  dififerent  in 
their  consequences,  and  that  the  right  of  a  corporation  in  this  re- 
spect was  like  an  alien,  who  has  power  to  take,  but  not  to  hold, 
lands,  and  that,  although  the  land  thus  held  by  an  alien  may  be 
subject  to  forfeiture  after  office  found,  yet  until  some  act  is  done 
by  government,  according  to  its  own  laws,  to  vest  the  estate  in 
itself,  it  remains  in  the  alien,  who  may  convey  it  to  a  purchaser, 
but  he  can  convey  no  estate  which  is  not  defeasible  by  the  com- 
monwealth." See,  also.  Hickory  Farm  Oil  Co.  v.  Buffalo,  etc.,  R. 
Co.  (C.  C.)  32  Fed.  22. 

In  the  case  of  Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  19:), 
19  L.  R.  A.  84,  the  question  had  reference  to  a  statute  similar  to 
the  statute  here  under  consideration,  which  accorded  to  nonresi- 
dent aliens  a  period  of  three  years  to  sell  land  which  might  fall  to 
them  by  descent,  in  which  case  a  right  under  a  treaty  between  the 
United  States  and  the  German  Empire  was  set  up  as  being  in  con- 
.^ict  with,  and  superior  to,  the  statute.  It  was  claimed  that  ap- 
pellant took  such  an  interest  in  the  lands  in  controversy  as  they 
could  hold  until  it  was  assailed  in  a  direct  proceeding  instituted  by 
the  state.  But  the  court  held  that,  as  the  appellant  had  no  power 
to  take  in  default  of  any  competent  heirs  capable  of  inheriting, 
the  land  escheated  to  the  state,  and  distinguishes  between  the 
power  to  take  and  the  power  to  hold. 

Under  the  language  of  the  third  and  fourth  clauses  of  article  5 
of  the  treaty,  referring  to  the  power  to  hold,  and  the  rights  of  Swiss 
aliens  in  the  states  of  America  in  respect  to  lands,  there  are  three 
supposable  cases  with  which  the  treaty  has  to  deal:  First,  states 
in  which  nonresident  aliens  may  both  inherit  and  hold;  second, 
states  in  which  nonresident  aliens  may  inherit,  but  not  hold;  third, 
states  in  which  nonresident  aliens  may  neither  inherit  nor  hold. 
In  the  first  case  they  shall  have  the  same  right  that  they  have  in 
regard  to  personal  property;  that  is  to  say,  they  shall  have  the 
right  to  transmit  to  their  heirs  by  devise  or  by  descent.  They  may 
take  possession  by  themselves  or  by  parties  acting  for  them.  They 
may  dispose  of  the  same  paying  no  other  charges  than  those  which 
the  inhabitants  of  the  country  are  liable  to  pay.  They  shall  have 
equal  rights  to  the  protection  of  the  laws  relating  to  probate  and 
administration  with  the  inhabitants  of  the  country.  The  second 
and  third  cases  are  dealt  with  by  the  fourth  clause  of  article  5,  pro- 
viding for  states  in  which  aliens  could  not  be  permitted  to  hold 


298  PERSONS  NON  COMPOTES    MENTIS   AND   ALIENS 

such  property.  The  classification  is  based  upon  a  disqualification 
to  hold,  and  prescribes  what  shall  be  the  rights  of  aliens  in  those 
states  in  which  they  are  not  permitted  to  hold. 

In  respect  to  this  clause  the  Supreme  Court  of  the  United  States, 
in  the  case  of  Hauenstein  v.  Lynham,  supra,  said  that  it  was  compe- 
tent for  a  state  under  this  provision — by-law — to  prescribe  the  lim- 
itation of  time  to  be  allowed  Swiss  citizens  to  sell  land  which  might 
fall  to  them  by  inheritance  for  the  purpose  of  removing  the  pro- 
ceeds, saying:  "If  a  state  or  canton  had  a  law  which  imposed  a 
limitation  in  this  class  of  cases,  nothing  more  was  necessary.  If 
it  had  not  such  a  law,  it  was  competent  to  enact  one,  and  until  one 
exists,  there  can  be  no  bar  arising  from  the  lapse  of  time."  The 
law  of  Indiana  grants  precisely  what  the  treaty  guarantees,  a  right 
to  have  the  inheritance,  and  to  hold  the  same  for  a  limited  time  for 
the  purpose  of  sale  and  the  withdrawal  of  the  proceeds,  and  pre- 
scribes that,  if  the  privilege  is  not  availed  of  within  the  term  al- 
lowed by  the  act,  the  estate  shall  escheat. 

Chief  Justice  Marshall,  in  Chirac  v.  Chirac,  2  Wheat.  259,  4  L. 
Ed.  234,  with  respect  to  just  such  an  act  granting  a  defeasible  term 
to  alien  heirs,  said :  "But  to  this  enacting  clause  is  attached  a  pro- 
viso that  whenever  any  subject  of  France  shall,  by  virtue  of  this 
act,  become  seised  in  fee  of  any  real  estate,  his  or  her  estate,  'after 
the  term  of  ten  years  be  expired,  shall  vest  in  the  state,  unless  the 
person  seised  of  the  same  shall,  within  that  time,  either  come  and 
settle  in,  and  become  a  citizen  of,  this  or  some  other  of  the  United 
States  of  America.'  The  heirs  of  John  Baptist  Chirac,  then,  on 
his  death,  became  seised  of  his  real  estate  in  fee,  liable  to  be  de- 
feated by  the  nonperformance  of  the  condition  in  the  proviso  above 
recited.  The  time  given  by  the  act  for  the  performance  of  this  con- 
dition expired  in  July,  1809,  four  months  after  the  institution  of 
this  suit.  It  is  admitted  that  the  condition  has  not  been  performed, 
but  it  is  contended  that  the  nonperformance  is  excused,  because 
the  heirs  have  been  prevented  from  performing  it  by  the  act  of 
law  and  of  the  party.  The  defendant,  in  the  court  below,  has  kept 
the  heirs  out  of  possession,  under  the  act  of  the  state  of  Mary- 
land, so  that  they  have  been  incapable  of  enfeoffing  any  American 
citizen,  and,  having  been  thus  prevented  from  performing  one  con- 
dition, they  are  excused  for  not  performing  the  other.  Whatever 
weight  might  be  allowed  to  this  argument  were  it  founded  in  fact, 
its  effect  cannot  be  admitted  in  this  case.  The  heirs  were  not  dis^ 
abled  from  enfeoffing  an  American  citizen.  They  might  have  en- 
tered, and  have  executed,  a  conveyance  for  the  land.  Having 
failed  to  do  so,  their  estate  has  terminated,  unless  it  be  supported 
in  some  other  manner  than  by  the  act  of  Maryland." 

Said  treaty  provides  for  two  different  classes  of  laws:  (1) 
Where  the  laws  of  the  state  permit  aliens  to  hold  or  inherit ;   and 


ALIENS  299 

(2)  where  they  are  not  permitted  to  hold.  In  the  latter  case 
the  treaty  expressly  provides  that  the  state  or  canton  may  fix  the 
term  in  which  to  sell  said  property.  Were  the  construction  insisted 
by  appellant  to  be  placed  upon  the  same,  there  would  be  no  need 
of  the  last  clause,  because  in  every  case  they  inherited  they  would 
fall  within  the  first  clause,  supra.  By  the  laws  of  our  state  aliens 
are  not  permitted  to  hold  real  estate,  and,  consistent  with  the  last 
clause  of  said  treaty,  have  limited  the  time  in  which  they  may 
transfer  the  same. 

The  court  did  not  err  in  its  conclusions  of  law.    Judgment  af- 
firmed. 


PART  V 

MASTER  AND  SERVANT 


MASTER  AND  SERVANT 
I.  Creation  of  the  Relation  * 


INGALLS  V.  ALLEN. 

(Supreme  Court  of  Illinois,  1890.     132  111.  170,  23  N.  E.  1026.) 

Action  by  Joseph  C.  Allen  against  Robert  S.  Ingalls.  Plaintiff 
obtained  judgment,  which  was  affirmed  by  the  appellate  court. 
Defendant  appeals. 

Shopi;,  C.  J.  This  action  was  brought  by  appellee  to  recover 
from  appellant  wages  at  the  rate  of  $40  per  month,  from  January 
1,  1885,  to  November  1,  1887,  during  which  time  appellee  claimed 
to  have  been  in  the  service  of  appellant;  and  also  to  recover  $150, 
which  appellee  claimed  appellant  promised  him  if  a  certain  farm 
of  appellant's  should  be  sold  by  appellee's  aid,  and  for  some  items 
of  money  advanced.  Appellee  went  to  Kansas  to  oversee  and  man- 
age a  ranch  for  appellant  under  an  agreement,  as  appellee  testifies, 
that  he  was  to  be  paid  $40  per  month,  and  his  board,  and  the  ex- 
penses of  traveling.  Appellant  admits  that  appellee  went  to  Kan- 
sas to  manage  his  ranch,  but  denies  that  there  was  any  contract  as 
to  what  his  wages  should  be,  and  contends  that  he  was  not  qual- 
ified for  or  capable  of  managing  the  ranch,  or  performing  what  he 
undertook  to  perform.  In  the  spring  of  1886  appellee  returned 
from  Kansas,  and,  as  he  claimed,  by  direction  of  appellant,  went 
to  work  for  him  at  Oak  Park  in  and  about  an  hotel  and  livery 
stable  which  appellant  was  operating  at  that  place.  Appellant  in- 
sists that  appellee  was  not  in  his  employ  at  Oak  Park,  but  that  he 
was  appellant's  partner  in  running  the  livery  stable,  and  boarded 
at  appellant's  hotel,  and  appellant  claims  to  recover  for  said  board 
in  his  suit  by  way  of  set-off.     Appellee  testified  that  nothing  was 

1  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §5 
257,  25S. 

(300) 


CREATION  OF  THE  RELATION  301 

said  about  the  rate  of  wages  when  the  employment  was  changed 
from  the  Kansas  ranch  to  the  Oak  Park  hotel  and  livery  stable,  and 
that  he  had  no  connection  with  the  stable  at  Oak  Park  except  to 
look  after  it. 

On  this  state  of  facts,  the  following  instruction  was  given :  "If 
the  jury  believe  from  the  evidence  that  the  defendant  employed 
the  plaintiff  at  an  agreed  sum  per  month  and  expenses,  to  proceed 
to  Kansas  and  take  charge  of  a  farm,  the  property  of  defendant, 
for  an  indefinite  period;  and  that,  subsequently,  defendant  request- 
ed plaintiff  to  return  to  Chicago,  and  proceed  to  Oak  Park  to  do 
certain  other  work  for  defendant,  and  the  plaintiff  did  both,  with 
no  other  or  different  arrangements  as  to  salary  and  expenses, — 
then  plaintiff  is  entitled  to  recover  for  the  full  time  he  so  remained 
in  defendant's  employ,  at  the  rate  agreed  upon  in  the  first  in- 
stance." Appellant  insists  that  the  employment  was  for  superin- 
tending his  Kansas  ranch  only,  and  that  ended  when  the  ranch 
was,  by  appellant,  sold  to  Kunde ;  and  that  if  appellee  worked  for 
appellant  at  Oak  Park,  which  the  latter  denies,  without  any  new 
agreement  fixing  his  compensation,  appellee  is  entitled  to  recover 
only  what  his  services  were  reasonably  worth. 

The  rule  undoubtedly  is  that  if  one  person  employ  another  at 
an  agreed  price  for  a  time  certain,  and  the  employment  is  contin- 
ued after  the  expiration  of  the  time  agreed  upon,  without  any  new 
agreement  as  to  price,  the  presumption  is  that  the  parties  under- 
stood that  the  original  rate  of  compensation  is  also  to  be  contin- 
ued; and  it  can  make  no  difference  that  there  may  be  some  change 
in  the  services  required  and  performed,  as  that  there  be  an  increase 
or  diminution  of  the  labor,  so  long  as  it  is  clearly  within  the  scope 
of  the  original  employment.  The  reason  is  that  if  the  employe 
remains  in  the  same  employment  after  his  term  of  service  has  ex- 
pired without  making  demands  for  increased  pay,  the  employer 
may  well  presume  that  no  increased  compensation  is  expected  or 
will  be  required;  and  having  acted  upon  that  presumption,  and 
failed  to  protect  himself  by  a  new  contract,  the  employe  will  be 
held  to  have  assented  to  a  performance  of  the  service  at  the  orig- 
inal price.  The  rights  of  the  employe  and  employer  are  mutual 
and  reciprocal.  So,  where  the  employer  permits  a  continuation  of 
the  service  after  the  term  has  expired,  without  a  new  stipulation 
as  to  the  price,  it  will  be  presumed  that  he  expected  and  intended 
to  pay  for  the  service  the  original  compensation  stipulated.  In 
such  case,  the  recovery  will  not  be  upon  the  quantum  meruit,  but 
upon  the  contract  implied  by  law,  and  for  the  compensation  pre- 
sumed to  have  been  fixed  by  the  parties.  Wallace  v.  Floyd,  29 
Pa.  184,  72  Am.  Dec.  620;  Ranck  v.  Albright,  36  Pa.  367;  Fac- 
tory Co.  V.  Richardson,  5  N.  H.  295 ;  Sewing  Machine  Co.  v.  Bulk- 
ley,  48  111.  189. 


302  MASTER  AND   SERVANT 

If  the  nature  of  the  service  required  to  be  performed  be  not 
different  from  that  which  the  parties  had  in  contemplation  when 
the  original  contract  was  entered  into,  the  fact  that  the  services 
rendered  after  the  original  term  had  expired  was  at  a  different 
place,  or  may  have  been  of  a  slightly  different  character,  will  not 
destroy  this  presumption,  if  it  can  be  said  that  such  service  was 
a  continuation  of  the  original  service,  and  within  the  scope  gen- 
erally of  the  original  employment.  Whether  the  services  ren- 
dered in  a  given  case  are  of  the  same  nature  and  of  the  character 
of  service  within  the  view  or  contemplation  of  the  parties  when 
the  original  contract  was  entered  into,  is  a  question  of  fact,  and, 
as  such,  is  proper  to  be  submitted  to  and  be  determined  by  the 
jury.  The  instruction  proceeds  upon  the  basis  that  if  appellant 
had  agreed  to  pay  "a  fixed  sum  per  month  to  appellee  for  taking 
charge  of  the  farm  and  property  of  appellant  in  Kansas,  and  that 
subsequently  appellant  requested  appellee  to  return  to  Chicago, 
and  proceed  to  Oak  Park,  and  do  certain  other  work  for  appellant, 
and  appellee  did  so  without  any  other  arrangement  as  to  compen- 
sation, then  appellee  was  entitled  to  recover  for  the  full  time,  at 
the  rate  of  compensation  first  agreed  upon."  The  jury  were  not 
left  at  liberty  to  determine  whether  the  "certain  other  work"  was 
within  the  scope  of  the  original  employment  or  not,  or  whether 
the  service  rendered  at  Oak  Park,  by  appellee  for  appellant,  if  any, 
was  a  continuation  by  appellee  in  the  original  employment  under 
the  original  contract.  If  the  jury  had  found  that  the  service  at  Oak 
Park  was  but  a  mere  continuation  of  the  service  in  Kansas,  and 
was  of  the  same  general  nature,  the  law  would  raise  a  presumption 
that  it  was  performed  under  the  original  contract  of  service. 

It  would  seem  from  the  evidence  that  considerable  time  elapsed 
between  the  time  when  appellee  quit  work  in  Kansas  before  he 
entered  upon  the  service  at  Oak  Park;  and  it  was,  we  think,  im- 
proper for  the  court  to  assume,  as  it  did  in  this  instruction,  that 
if  appellant  "subsequently"  requested  the  appellee  to  proceed  to 
Oak  Park  to  do  certain  other  work  for  appellant,  as  a  matter  of 
law,  such  other  work  was  a  continuation  of  the  service  under  the 
original  employment,  and  to  be  paid  for  at  the  price  originally 
agreed  upon  for  the  service  rendered  in  Kansas.  The  fact  being  es- 
tablished that  the  employment  continued  after  the  expiration  of  the 
original  term,  and  the  service  rendered  being  of  the  same  general 
nature  and  character  as  that  contemplated  by  the  original  agree- 
ment as  before  said,  the  law  implies  a  promise  to  pay  the  price 
agreed  upon ;  but  it  was,  in  view  of  the  facts  disclosed  by  this  rec- 
ord, error  for  the  court  to  assume  the  fact,  as  was  done  in  this  in- 
struction. 

It  cannot  be  said  that  this  is  error  without  prejudice.  The  evi- 
dence of  whether  service  was  performed  by  appellee  for  appel- 


TERMINATION    OF   THE    RELATION  303 

lant  at  Oak  Park  is  conflicting-  and  irreconcilable.  And  it  is  by 
no  means  so  clear,  when  all  the  evidence  is  considered,  that  the 
v^erdict  was  correct,  that  we  can  say  that  substantial  justice  has 
been  done.  As  to  whether  appellee  performed  any  service  for  ap- 
pellant at  Oak  Park,  or,  if  he  did,  when  such  service  began,  i.  e., 
how  soon  after  the  termination  of  his  former  service,  and  the 
kind  and  character  of  service  performed,  are  controverted  ques- 
tions, and  evidence  was  offered  sustaining  the  contention  for  either 
of  the  parties.  Is  it  the  law  that  if  appellant,  "subsequently"  to 
the  termination  of  the  service  of  appellee  under  the  original  agree- 
ment, requested  appellee  to  do  certain  work  for  him  at  Oak  Park, 
although  of  the  same  general  character  as  that  contemplated  by  the 
agreement,  that  a  presumption  arises  that  the  parties  intended  that 
the  same  price  should  be  received  by  appellee  or  be  paid  by  ap- 
pellant? If  so,  how  long  "subsequently"  before  such  presumption 
would  cease? 

There  is  much  evidence  tending  to  show  that  for  at  least  two 
weeks  after  appellee  had  returned  to  Chicago  from  Kansas  he 
performed  no  substantial  service;  and  that  that  time,  or  a  much 
longer  period  of  time,  elapsed  before  the  service  was  actually  en- 
tered upon  by  him  in  appellant's  hotel  and  livery  stable  at  Oak 
Park.  We  are  of  opinion  that  it  cannot  be  said  that  the  pre- 
sumption necessarily  arises  because  the  request  was  subsequently 
made,  or  made  after  the  lapse  of  any  considerable  time  from  the 
completion  of  the  service  under  the  express  agreement.  The  pre- 
sumption is  only  warranted  where  the  service  can  be  said,  as  a 
matter  of  fact,  to  be  continuing. 

We  find  no  other  error  in  this  record,  but  for  the  one  indicated 
the  judgment  of  the  appellate  and  circuit  courts  must  be  reversed, 
and  the  cause  remanded  to  the  circuit  court  for  further  proceed- 
ings. 


II.  Termination  of  the  Relation* 
1.  Bre:ach  by  Master 


WHARTON  v.  CHRISTIE. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S91.    53  N.  J.  Law,  607,  23 

Atl.  258.) 

Suit  by  J.  J.  Christie  against  Joseph  Wharton  to  recover  on  a 
contract  for  wages.  Verdict  and  judgment  for  plaintiff.  Defend- 
ant brings  error. 

2  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
259-261. 


304  MASTER   AND   SERVANT 

Beasley,  C.  J.'  My  examination  of  this  case  has  resulted  in  the 
conviction  that  the  judgment  before  us  should  be  reversed.  The 
facts  necessary  to  explain  the  view  thus  taken  are  briefly  these: 
The  defendant  in  error,  Christie,  was  in  the  employment  of  Whar- 
ton, the  plaintiff  in  error;  and  this  suit  is  brought  by  the  former 
for  the  wages  stipulated  for  in  the  contract  creating  such  re- 
lationship, the  ground  of  action  being  that  he  had  been  unlaw- 
fully discharged  from  the  employment,  and  that  consequently  he 
had  a  right  to  such  agreed  wages.  The  jury  has  found  that  the  dis- 
charge in  question  was  unjustifiable,  and  of  course  that  fact  is  at 
this  stage  of  the  proceedings  to  be  assumed.  Thus  far  there  is 
no  difficulty  in  the  case.  The  trouble  arises  from  the  step  in  the 
business  next  taken. 

The  testimony  of  Mr,  Christie  (the  employe)  himself  narrates 
the  transaction  relating  to  his  discharge ;  and  there  is  no  con- 
flict in  the  evidence  on  the  subject.  The  record  exhibits  the  fol- 
lowing questions  and  answers;  the  Mr.  Constable  here  men- 
tioned being  the  duly-authorized  agent  of  the  employer,  the  plain- 
tiff in  error:  "I  told  him,"  said  Mr.  Christie,  "that  Mr.  Wharton 
[his  employer]  had  forbade  me  from  doing  any  office  work.  Ques- 
tion. Well,  what  did  he  say?  Answer.  Mr.  Constable  said,  if 
I  did  not  make  out  the  estimates,  that  he  would  discharge  me. 
*  *  *  I  refused,  and  he  discharged  me.  Q.  Then  what  fol- 
lowed? A.  The  writing  out  of  a  piece  of  paper;  and  that  was  writ- 
ten out  for  protection — for  me  to  get  work  elsewhere,  if  I  wanted 
to  apply  to  any  other  of  these  glassmen.  Q.  How  did  you  hap- 
pen to  write  out  the  piece  of  paper?  A.  Well,  through  Mr.  Con- 
stable's dictation.  Q.  Did  he  tell  you  to  write  it  out?  A.  Yes, 
sir.  Q.  What  was  it  designed  for?  A.  For  me  to  get  employment 
elsewhere.  Q.  Explain  what  you  have  in  mind  about  that.  A. 
Elsewhere  would  be  into  any  other  establishment,  Q.  Well,  you 
say  to  get  your  employment.  Explain  all  that  was  said  on  the  sub- 
ject between  you  and  Mr.  Constable.  A.  Well,  a  man  going  to  be 
employed  at  any  other  works  in  the  capacity  that  I  had  served 
Mr.  Wharton,  and  being  discharged,  and  it  being  known,  he  could 
not  get  any  other  employment.  Q.  Just  tell  what  occurred.  What 
was  said  between  you  and  Mr.  Constable  about  it,  as  nearly  as 
you  can  recollect  it?  A.  Well  it  was  in  words  just  like  this: 
That  this  would  be  of  assistance  to  assist  me  in  getting  work — 
this  discharge,  or  this  piece  of  paper;  and  my  discharge  would 
be  kept  secret,  and  nobody  would  know  anything  about  it.  That 
is  what  were  the  words  that  passed  between  us." 

The  piece  of  paper  here  referred  to  was  in  these  words,  viz.: 
"Camden,  September  14,  1882.  Mr,  Joseph  Wharton:  I  hereby 
resign  my  position  as  inside  manager  of  glass-works,  to  take  ef- 

«  Part  of  the  opinion  Is  omitted. 


TERMINATION    OF   THE    RELATION  305 

feet  from  September  8th.  [Signed]  J.  J.  Christie."  This  writing 
was  then  delivered  by  Christie  to  Constable,  and  was  accepted 
by  him,  and  retained  until  produced  at  the  trial. 

From  this  narration,  which  is  the  plaintiff's  own,  and  was  in  no 
wise  contradicted,  it  will  be  observed  that  the  legal  question  thus 
presented  by  these  facts  is  whether  an  employe  can  be  permitted  to 
set  up  that  his  contract  of  employment  still  continues  to  subsist 
after  he  has  in  writing  voluntarily  presented  to  his  employer  his 
written  resignation,  which  has  been  accepted?  It  is  to  be  noted 
that,  when  the  resignation  in  the  present  instance  was  executed, 
this  was  the  situation,  regarding  it  from  the  employer's  own  point 
of  view :  The  contract  of  employment  was  still  in  force,  as  it  had 
in  no  wise  been  impaired  or  ended  by  the  antecedent  illegal  dis- 
charge; and,  in  this  attitude  of  things,  he  himself,  by  his  own 
voluntary  act,  put  an  end  to  it.  I  say  by  his  own  voluntary  act, 
because  there  is  and  can  be  no  pretense  that  there  was  either 
fraud  or  duress  in  the  transaction. 

The  inquiry  therefore  presses:  On  what  ground  can  a  resigna- 
tion of  this  character  be  avoided  or  annulled?  Why  is  it  not  ut- 
terly conclusive?  This  resignation  was  a  contract  in  writing  be- 
tween these  parties,  and  it  could  not  be  altered  by  parol.  The  ob- 
ject or  purpose  of  it  was  entirely  legal,  nay,  even  laudable,  as  it 
was  designed  to  enable  the  employe,  who  at  the  worst  had  com- 
mitted but  a  slight  offense,  if  he  had  committed  any,  to  seek  for 
employment  elsewhere  without  the  stigma  fixed  upon  him  of  havlnpf 
been  discharged  by  his  last  master  for  imputed  disobedience.  The 
employe  had,  upon  being  illegally  discharged,  the  option  either  to 
yield  to  it  or  to  resist,  and  he  chose  the  former  of  the  alternatives, 
and  evinced  such  election  in  the  conclusive  form  of  a  written  res- 
ignation. It  seems  to  me,  upon  the  plainest  principles  of  law,  that 
after  such  an  act  as  this  the  employe  was  utterly  precluded  from 
asserting-  in  a  court  of  law  that  the  contract  between  himself  and 
his  employer  still  continued  in  existence. 

On  this  ground  the  motion  to  nonsuit  made  at  the  trial  should 
have  prevailed.  And  this  error  ran  into  the  charge  of  the  trial 
judge.  The  jury  were  told  (using  the  judicial  language)  :  "If 
Wharton,  the  employer,  considered  that  Christie  had  been  dis- 
charged— not  that  he  had  resigned,  but  considered  that  he  had  been 
discharged — then  the  fact  of  the  existence  of  this  paper,  signed  by 
Christie,  purporting  to  be  a  resignation,  does  not  necessarily  pre- 
vent his  right  to  recover,  unless  you  consider  that  it  was  a  res- 
ignation, or  unless  you  consider  that  it  was  an  acquiescence  in  his 
discharge."  Thus  the  question  whether  the  paper  purporting  to 
be  a  resignation  was  such  or  not  was  left  to  the  jury.  There  was 
no  question   made  as  to  the  execution  of  the  paper.     Its  terms 

COOLEY  P.&  D.Rel.— 20 


306  MASTER  AND  SERVANT 

were  as  clear  as  they  could  possibly  be.  So  that  the  question 
whether  it  was  a  resignation  or  not  was  purely  a  legal  one,  and 
yet  that  question  was  to  be  settled  by  a  verdict. 

It  seems  to  me  that  the  error  pervading  the  entire  charge  on 
this  subject  was  this:  that  the  validity  of  the  resignation  de- 
pended upon  the  ideas  that  were  entertained  by  Wharton,  the 
employer,  with  respect  to  the  fact  whether  Christie  was  to  be 
considered  as  a  discharged  man,  or  as  one  who  had  voluntarily  re- 
tired. *  *  *  f  he  instruction  at  the  trial  on  this  head  thus 
proceeded:  "But  if,  on  the  other  hand,  Mr.  Wharton  understood 
that  Constable  had  discharged  Christie,  and  if  Wharton  ratified 
that  discharge  for  what  he  conceived  to  be  proper  cause,  then  he 
was  not  deceived  by  this  paper  writing,  because  he  did  not  con- 
sider that  the  man  had  voluntarily  retired.  He  considered  him  as 
a  man  who  had  been  compulsorily  4ischarged.  You  will  see  the 
distinction  between  relying  on  the  paper  and  relying  on  a  dis- 
charge." 

Now,  I  must  think  this  was  a  plain  error  in  law,  because  what- 
ever Mr.  Wharton  thought  on  the  subject  referred  to  could  not 
by  any  possibility  have  any  effect  whatever.  At  the  time  of  this 
reported  conversation,  it  is  undeniable  that  the  contract  between 
himself  and  Mr.  Christie  was  at  an  end,  either  by  the  operation 
of  the  discharge,  or  by  that  of  the  resignation,  or  of  both.  Doubt- 
less Mr.  Wharton  thought  at  the  time  that  the  discharge  was  legal, 
and  he,  in  effect,  says  so;  but  how  did  such  belief,  or  such  ex- 
pression of  it,  affect  in  any  degree  whatever  the  resignation?  Sup- 
pose he  had  directly  said  that  the  discharge  was  legal,  and  there- 
fore the  resignation  was  inefficacious.  AVould  that  have  canceled 
the  resignation?  It  does  not  seem  to  me  that  any  one  would  claim 
that  such  would  be  its  effect.  The  question  can  be  readily  tested : 
Let  it  be  supposed  that  upon  reflection  Mr.  Wharton  had  con- 
cluded that  the  discharge  in  question  was  unwarrantable,  and  had 
notified  Mr.  Christie  to  return  to  his  service  under  his  contract. 
On  refusal,  would  a  suit  have  lain?  Certainly  it  is  undeniable 
that  to  such  a  suit  by  the  employer  the  resignation  which  had  been 
accepted  by  the  employer  would  have  been  a  conclusive  bar.  If 
this  be  so  it  necessarily  follows  that,  if  the  employer  be  barred 
by  this  instrument,  so  must  the  employe  be  barred. 

The  question  thus  presented  is  of  importance,  for  it  relates  to 
the  legal  efficacy  of  written  agreements.  This  resignation  was  a 
written  agreement.  It  purported  to  be  absolute  for  all  purposes, 
on  its  face.  Its  legal  effect  was  to  destroy  the  contract  then  ex- 
isting between  this  employer  and  this  employe.  And  yet  on  this 
trial  the  jury  has  been  permitted  to  say  that  this  paper  does  not 
contain  the  real  understanding  of  these  parties;  that,  contrary 
to  the  plain  statement  of  the  writing,  they  did  not  intend  to  affect 


TERMINATION    OF  THE   RELATION  307 

in  any  degree  the  relationship  between  themselves  as  employer 
and  employe.  My  conclusion  is  that  this  rule,  if  adopted  in  prac- 
tice, will  in  a  most  disastrous  manner  affect  the  legal  department 
to  which  it  relates,  and  will  greatly  deprive  written  contracts  of 
that  impregnability  to  the  assaults  of  parol  evidence  which  it  has 
ever  been  the  policy  of  the  law  to  impart  to  them.  From  these  con- 
siderations, I  am  led  to  vote  to  reverse  this  judgment. 

Depue,  Reed,  Scudder,  Ceement,  Smith,  and  Whitaker,  JJ., 
concur. 

Van  SyckEL,  J.  (dissenting).  *  *  *  The  main  ground  re- 
lied upon  for  reversal  is  that  Christie,  by  a  written  resignation, 
acquiesced  in  his  discharge.  Christie  testified  that  after  Constable 
had  discharged  him,  on  the  14th  day  of  September,  he  wrote  out 
and  signed  the  following  paper,  and  handed  it  to  Constable :  "Cam- 
den, September  14,  1882.  Mr.  Joseph  Wharton:  I  hereby  re- 
sign my  position  as  inside  manager  of  glass-works,  to  take  effect 
from  September  8th.  J.  J.  Christie."  He  said  he  wrote  this  at 
Constable's  dictation,  because  Constable  told  him  that,  if  it  was 
known  that  he  was  discharged,  he  could  not  get  employment  else- 
where; that  his  discharge  would  be  kept  secret,  and  this  resigna- 
tion would  assist  him  in  getting  work  in  some  other  place.  He 
denies  that  he  consented  to  the  discharge,  and  says  that  he  went 
the  next  day  to  Wharton,  and  asked  to  be  reinstated,  which  was 
refused.  The  trial  judge  on  this  branch  of  the  case  charged  the 
jury  that  if  this  resignation  was  Christie's  voluntary  act,  and  if 
he  ceased  to  work  because  of  the  acceptance  by  his  employer  of 
the  proposition  contained  in  that  resignation,  he  could  not  recover, 
but  if  Christie  was  discharged  before  he  wrote  that  paper,  and 
his  failure  to  continue  work  was  not  due  to  a  voluntary  retirement, 
but  to  a  compulsory  retirement,  and  the  paper  was  written  by 
Christie,  at  the  suggestion  of  Wharton's  agent,  for  the  mere  pur- 
pose of  enabling  Christie  to  secure  other  employment,  then  it  did 
not  operate  as  a  bar  to  the  action.  The  trial  judge  further  charged 
in  this  behalf  that  even  though  Christie  did  not  intend  this  paper 
to  be  a  resignation,  but  simply  a  device  to  aid  himself  to  obtain 
another  position,  yet  if  Christie  allowed  Wharton  to  remain  un- 
der the  impression  that  he  had  voluntarily  resigned  by  this  writ- 
ten paper,  that  operated  as  an  estoppel,  and  he  could  not  recover. 
These  instructions  presented  the  law  as  favorably  for  the  defend- 
ant below  as  he  was  entitled  to  have  it  declared.  It  was,  under 
the  evidence,  a  question  of  fact  for  the  jury  whether  the  written 
paper  was  a  voluntary  surrender  by  the  plaintiff  of  his  position, 
or  whether,  after  being  compelled  against  his  will  to  submit  to 
discharge,  he  resorted  to  the  resignation  for  the  purpose  testified 
to  by  him,  at  the  suggestion  of  defendant's  agent. 

Railroad  Co.  v.  Slack,  45  Md.  161,  presented  the  question  in- 


308  MASTER  AND  SERVANT 

volved  in  this  case.  The  railroad  company  employed  Slack  as  its 
general  superintendent  for  a  year  commencing  January  1,  1874, 
at  an  annual  salary  payable  monthly.  On  the  9th  of  April,  1874, 
he  received  the  following  letter  from  the  president  of  the  com- 
pany :  "New  York,  April  8,  1874.  C.  Slack,  Esq.,  Superintendent, 
Mount  Savage — Dear  Sir:  I  am  satisfied  that  the  interests  of 
this  company  require  a  reorganization  of  its  local  management  by 
the  concentration  of  its  affairs  in  Allegany  county  under  one  head. 
Accordingly,  I  write  by  to-day's  mail  to  the  second  vice  president, 
to  assume  charge  of  the  railroad.  Recent  circumstances  have  con- 
firmed the  opinion  above  expressed.  I  presume  you  will  prefer 
to  retire  by  means  of  a  resignation.  It  is  hereby  understood  that 
the  same  is  accepted,  and  you  will  please  telegraph  me  of  its 
transmission,  as  I  have  instructed  the  second  vice  president  to' 
take  entire  charge  of  the  railroad  immediately  on  receipt  of  my 
letter.  Please  confer  with  Mr.  Millholland  in  turning  over  the 
papers  in  the  superintendent's  office.  Yours,  respectfully,  Allen 
Campbell,  President."  Slack  at  once  acted  in  accordance  with  the 
request  in  the  letter,  by  surrendering  to  the  company  his  charge, 
and  leaving  the  service  of  the  company.  On  the  next  day  he  ad- 
dressed to  the  president  of  the  company  the  following  note: 
"April  10,  1874.  Allen  Campbell — Dear  Sir:  I  hereby  resign  the 
position  of  general  superintendent  of  the  Cumberland  and  Penn- 
sylvania Railroad  Company,  to  take'  effect  at  once.  Yours,  truly, 
C.  Slack."  In  an  action  of  assumpsit  brought  by  the  railroad  com- 
pany against  Slack  to  recover  money  alleged  to  be  due  by  him  to 
the  company,  he  pleaded  his  discharge,  and  claimed  to  set  ofi  the 
amount  due  him  for  salary  from  the  time  he  left  the  service  of  the 
company  to  the  end  of  the  year.  The  opinion  of  the  court,  de- 
livered by  Chief  Justice  Bartol,  held  (1)  that  the  letter  of  the 
president  of  the  company  operated  as  a  positive  and  peremptory 
dismissal  of  Slack  from  the  service  of  the  company;  (2)  that  the 
note  of  Slack,  written  the  next  day,  could  not  change  its  character 
or  construction,  or  show  that  he  voluntarily  resigned,  nor  could 
it  be  construed  as  an  acquiescence  in  his  dismissal. 

In  the  case  cited  the  railroad  company  requested  the  trial  judge 
to  charge  that  the  jury  might  find  that  by  the  letter  of  April  10th 
the  defendant  consented  to  and  acquiesced  in  the  request  to  re- 
sign his  place,  and,  if  they  did  so  find,  the  defendant  could  not  be 
allowed  to  set  off.  The  trial  judge  refused  so  to  charge,  and  on  the 
review  of  the  case  the  chief  justice  ruled  that  the  request  was 
rightly  refused ;  that  it  presented  a  question  of  law  for  the  court, 
and  under  the  circumstances  of  the  case  the  jury  could  not  infer 
acquiescence.  In  the  case  under  review  the  charge  of  the  trial 
judge  was  more  favorable  to  the  employer,  as  under  his  instruc- 
tions it  was  left  to  the  jury  to  say  whether  the  conduct  of  the 


TERMINATION    OF   THE    RELATION  309 

employe  showed  that  he  had  acquiesced  in  his  dismissal,  and 
whether  the  resignation  was  in  truth  and  in  fact  his  act.  Wharton 
could  not  claim  to  hold  the  resignation  as  a  shield  to  himself,  if 
it  was  given  to  Constable  upon  the  express  agreement  that  he 
should  use  it  to  save  Christie  from  the  consequences  of  dismiss- 
al. If  Christie  voluntarily  tendered  his  resignation  to  Wharton, 
this  action  of  course  could  not  be  maintained.  But  the  very  ques- 
tion before  the  trial  court  was  whether  Christie  was  chargeable 
with  giving  in  such  resignation  to  his  employer.  His  evidence  is 
that  he  lost  his  position,  not  by  resignation,  but  by  the  wrongful 
act  of  his  master.  He  was  peremptorily  dismissed  from  service, 
and  for  the  consequences  of  such  dismissal  Wharton's  liability  to 
him  had  become  fixed.  Nothing  was  done  with  the  intention  of 
discharging  such  liability.  On  the  contrary,  Christie  expressly 
told  Wharton  that  he  wished  to  retain  his  position. 

Constable  had  no  right  to  deliver  the  resignation  to  Wharton  to 
enable  him  to  set  it  up  as  a  bar  to  Christie's  action.  That  was  a 
clear  misappropriation  of  the  document;  and  to  permit  it,  under 
the  circumstances  detailed  by  Christie,  to  be  used  for  such  a  pur- 
pose, does  great  injustice.  In  this  review  on  writ  of  error  the 
testimony  of  Christie  must  be  accepted  as  true.  In  the  face  of  his 
testimony  that  the  paper  was  given  for  his  own  benefit  to  the 
agent,  and  not  for  Wharton's,  it  would,  in  my  view,  have  been  er- 
ror in  the  court  below  to  treat  it  as  a  bar  to  recovery.  The  ques- 
tions arising  in  the  case  were  properly  submitted  to  the  jury,  and 
in  my  opinion  the  judgment  below  should  be  affirmed.* 

McGiLL,  Ch.,  and  Magie,  Knapp,  Bogert,  and  Brown,  JJ.,  concur 
with  Van  Syckel,  J. 


2,  Breach  by  Servant 


JEROME  v.  QUEEN  CITY  CYCLE  CO. 

(Court  of  Appeals  of  New  York,  1900.     163  N.  Y.  351,  57  N.  E.  485.) 

Action  by  Anthony  Jerome  against  the  Queen  City  Cycle  Com- 
pany. From  a  judgment  of  the  appellate  division  (24  App.  Div. 
632,  48  N.  Y.  Supp.  1107),  affirming  a  judgment  entered  on  the 
verdict  of  a  jury,  defendant  appeals. 

This  action  was  brought  to  recover  damages  for  an  alleged 
wrongful  discharge  of  the  plaintiff,  who  had  been  employed  by 
the  defendant  for  the  period  of  one  year  to  act  as  superintendent 

4  Compare  Jones  v.  Graham  &  Morton  Transp.  Co.,  51  Mich.  539,  IG  N.  ^V. 
893   (1883). 


310  MASTER  AND   SERVANT 

of  its  bicycle  factory  at  Lake  View,  about  20  miles  from  Buffalo. 
The  defendant  admitted  that  it  discharged  the  plaintiff  before  the 
expiration  of  the  term  agreed  upon,  but  alleged  that  the  discharge 
was  lawful  on  account  of  tardiness,  absence,  and  disobedience  of 
orders.  By  a  written  contract  entered  into  by  the  parties  on  the 
10th  of  October,  1895,  the  defendant  agreed  to  employ  the  plain- 
tiff as  superintendent  of  its  factory  for  one  year  from  said  date  at 
a  salary  of  $2,000,  payable  monthly.  The  plaintiff  agreed  to  "give 
his  services"  to  the  defendant,  and  to  "devote  his  best  efforts  in 
the  faithful  and  efficient  discharge  of  the  duties  of  superintendent," 
during  the  period  and  for  the  compensation  aforesaid.  It  was 
mutually  agreed  that  the  plaintiff  should  "have  full  control  and 
discretion  as  to  the  employment  and  dismissal  of  all  help  prop- 
erly engaged  in  said  factory  in  any  capacity." 

On  May  5,  1896,  the  defendant,  through  its  president,  wrote  to 
the  plaintiff,  who  was  a  skillful  pattern  maker,  to  confine  himself 
"to  superintending  the  designing,  pattern  making,  and  drafting  in 
your  department,  and  to  such  other  duties  and  the  execution  of 
such  other  orders  as  may  be  specifically  given  you  by  the  presi- 
dent. *  *  *  Do  not  leave  your  duties  during  working  hours 
without  specific  permission  of  the  president.  *  *  *  Tardiness 
will  not  be  permitted.  You  have  left  your  duty  for  a  number  of 
hours  at  times  recently,  and  in  three  cases  without  any  knowledge 
of  the  president,  and  in  one  case  yesterday  without  his  permis- 
sion, and  in  direct  disobedience  to  his  orders.  When  you  desire  to 
absent  yourself,  you  must  apply  to  the  president  for  permission, 
stating  your  reasons  and  abide  by  his  decision.  If  any  or  all  of 
the  above  conditions  are  not  carefully  and  strictly  observed  and 
complied  with,  this  will  be  considered  sufficient  cause  for  dis- 
charge." 

One  of  the  employes  at  the  factory,  named  Fenton,  "called  a 
meeting  at  North  Evans,"  at  which  he  denounced  the  plaintiff,  and 
called  him  a  "liar,  hypocrite,  and  scoundrel."  Soon  after,  at  a 
second  meeting,  presumably  of  the  employes,  Fenton  again  de- 
nounced him.  About  May  23d  the  plaintiff  told  Mr.  Fries,  defend- 
ant's president,  that  he  was  going  to  Buffalo  to  take  counsel  in 
order  to  suppress  "that  fellow's  vilification  and  abuse,  and  to  pro- 
tect" himself  "by  legal  process."  Mr.  Fries  replied  that  if  he  ab- 
sented himself  "that  day"  for  that  reason  he  should  consider  him- 
self discharged.  The  plaintiff,  notwithstanding,  went  to  Buft'alo 
for  the  purpose  aforesaid,  and  was  gone  the  entire  day.  Before 
leaving,  he  gave  orders  in  relation  to  the  work  of  the  factory,  in 
which  600  men  were  employed  under  his  superintendence.  He  told 
Mr.  Wheeler,  who  was  foreman  of  the  machine  department,  that 
"he  was  going  to  Buffalo  on  some  private  business  of  his  own,  and 
expected  to  be  away  all  day";   that  "he  had  been  threatened  with 


TERMINATION   OF   THE    RELATION  311 

discharge  if  he  left  his  business,  and  that  he  did  not  consider  that 
he  was  tied  down  so  that  he  could  not  go  and  look  out  for  his  own 
affairs. 

On  the  day  after  he  went  to  Buffalo,  plaintiff  was  discharged 
for  disobedience  of  orders.  The  defendant  introduced  evidence 
tending  to  show  that  the  plaintiff  was  absent  without  leave  both 
before  and  after  said  correspondence,  and  that,  when  warned  not 
to  repeat  it,  or  he  would  be  discharged,  he  replied  that  "he  con- 
sidered he  had  a  right  to  go  to  Buft'alo  or  other  places  on  his  own 
private  business."  There,  was  no  evidence  that  anything  went 
wrong  at  the  factory  during  any  of  his  absences. 

Vann,  J.^  The  relation  of  master  and  servant,  which  existed 
between  the  parties,  cast  certain  duties  upon  the  plaintiff  that  he 
was  bound  to  discharge,  and  the  foremost  was  that  of  obedience 
to  all  reasonable  orders  of  the  defendant  not  inconsistent  with 
the  contract.  Disobedience  of  such  orders  is  a  violation  of  law 
which  justifies  the  rescission  of  the  contract  by  the  master  and  the 
discharge  of  the  servant.  Edgecomb  v.  Buckout,  146  N.  Y.  332, 
339,  40  N.  E.  991,  28  L.  R.  A.  816;  Lacy  v.  Getman,  119  N.  Y.  109, 
115,  23  N.  E.  452,  6  L.  R.  A.  728,  16  Am.  St.  Rep.  806;  Forsyth 
V.  McKinney,  56  Hun,  1,  8  N.  Y.  Supp.  561;  Harrington  v.  Bank, 
1  Thomp.  &  C.  361 ;  Tullis  v.  Hassell,  54  N.  Y.  Super.  Ct.  391 ; 
Spain  V.  Arnott,  2  Starkie,  256;  Callo  v.  Brounker,  4  Car.  &  P. 
518;  Amor  v.  Fearon,  9  Adol.  &  E.  548;  Wood,  Mast.  &  S.  221, 
225;  Smith,  Mast.  &  S.  *139;  14  Am.  &  Eng.  Enc.  Law,  789;  Chit. 
Cont.  [10th  Ed.]  628,  629.  After  complaint  had  been  made  in  re- 
gard to  several  absences  without  permission,  the  plaintiff  desired 
to  be  absent  for  an  entire  day  to  attend  to  private  business.  He 
did  not  ask  permission,  but  simply  announced  his  intention  to 
his  employer,  stating  the  reason,  and  was  informed  that  if  he  ab- 
sented himself  that  day  for  that  purpose  he  would  be  discharged. 
He  was  not  told  that  he  could  not  leave  at  all,  but  simply  that  he 
could  not  leave  on  that  particular  day.  This  was,  in  effect,  a 
command  not  to  leave  his  work  on  the  day  in  question ;  but,  not- 
withstanding, he  did  leave  it,  and  thus  willfully  disobeyed  the 
order  of  his  employer.  He  was  at  once  discharged,  and,  if  said 
order  was  reasonable,  under  the  circumstances,  the  discharge  was 
in  accordance  with  law ;  but,  if  it  was  unreasonable,  the  discharge 
was  in  violation  of  law. 

The  plaintiff  claims  that  this  was  a  question  of  fact  for  the 
jury,  and  as  they  answered  it  in  his  favor,  after  affirmance  by  the 
appellate  division,  we  cannot  answer  it  in  favor  of  the  defendent. 
As  the  judges  of  the  court  below  do  not  appear  to  have  been 
unanimous  in  their  decision,  we  have  the  right  to  read  the  rec- 
ord in  order  to  see  whether  there  was  any  evidence  which,  accord- 

0  The  statement  of  facts  is  abridged. 


312  MASTER  AND   SERVANT 

ing  to  any  reasonable  view,  would  sustain  the  conclusion  of  the 
jury.  Gannon  v.  McGuire,  160  N.  Y.  476,  55  N.  E.  7,  73  Am.  St. 
Rep.  694;  Otten  v.  Railway  Co.,  150  N.  Y.  395,  44  N.  E.  1033. 
If  the  undisputed  facts,  in  connection  with  the  testimony  of  the 
plaintiff,  when  supported  by  every  inference  that  can  properly  be 
drawn  therefrom,  do  not  warrant  the  verdict,  a  question  of  law 
arises,  which  we  can  review.  Uncontradicted  facts,  with  the  log- 
ical deductions  therefrom  all  pointing  in  the  same  direction,  pre- 
sent a  question  of  law  for  the  court,  and  not  a  question  of  fact  for 
the  jury.  Griggs  v.  Day,  158  N.  Y.  1,  10,  52  N.  E.  692;  Ostrom 
V.  Greene,  161  N.  Y.  353,  357,  55  N.  E.  919;  O'Brien  v.  Bridge  Co., 
161  N.  Y.  539,  544,  56  N.  E.  74,  48  L.  R.  A.  122. 

The  construction  of  the  contract  is  for  the  court  exclusively. 
The  plaintiff  expressly  agreed  "to  give  his  services"  to  the  de- 
fendant, and  to  "devote  his  best  efforts  in  the  faithful  and  efficient 
discharge  of  the  duties  of  superintendent."  He  impliedly  agreed 
to  devote  his  time  to  the  work  of  his  employer  during  business 
hours,  unless  he  was  sick,  or  some  other  emergency  arose  to  jus- 
tify his  absence.  The  defendant,  in  making  the  contract,  did  not 
abdicate  its  position  as  master,  nor  waive  control  of  its  business. 
The  plaintiff  was,  in  law,  a  servant,  although  of  a  high  grade,  with 
full  control  and  discretion  as  to  hiring  and  dismissing  all  the  other 
servants.  In  other  respects  he  was  subject  to  the  reasonable  or- 
ders of  his  master,  for  there  was  nothing  in  the  contract  to  re- 
lieve him  from  the  duty  of  obedience  required  by  law.  He  had 
charge  of  an  extensive  manufactory,  where  600  men  were  at  work. 
The  defendant  had  the  right  to  manage  its  own  business,  and  to 
decide  whether  the  services  of  the  plaintiff  were  necessary  at  the 
factory  on  the  day  in  question.  It  did  so  decide,  and  he  had  no 
power  to  overrule  the  decision,  for  that  would  make  the  master 
and  servant  change  places.  He  did  not  ask  leave  to  go  some  other 
day,  and  was  not  told  that  he  could  not  go  some  other  day,  when 
the  situation  of  the  business,  in  the  master's  judgment,  would  per- 
mit it.  It  was  unreasonable  for  the  plaintiff,  when  employed  to 
superintend  extensive  operations  and  many  men,  to  take  a  day  off 
at  will,  for  a  private  purpose,  regardless  of  the  condition  of  the 
business  or  the  wishes  of  his  employer.  There  was  no  emergency 
to  justify  him  in  leaving  important  affairs,  which  he  had  been  hired 
to  look  after,  for  a  whole  day,  in  defiance  of  orders.  The  defendant 
had  a  right  to  the  skill  and  services  during  ordinary  working  hours 
which  he  had  agreed  to  give,  and  for  which  it  was  paying  him. 

There  was  no  occasion  for  taking  counsel  in  order  to  prevent 
one  of  the  employes  from  calling  him  names,  which  were  not  ac- 
tionable upon  their  face,  nor  otherwise,  so  far  as  appears,  because 
he  had  the  absolute  power  to  discharge  the  obnoxious  man  at  once. 
It  was  not  reasonable  for  him  to  abandon  the  work  he  had  been 


TERMINATION    OP   THE    RELATION  313 

employed  to  do  for  such  a  trifling  cause,  which,  as  he  admits, 
was  purely  personal.  The  excuse  given  by  him  to  justify  his  dis- 
obedience of  orders  presented  no  question  of  fact  for  the  jury,  for 
the  law  does  not  permit  a  servant  to  defy  his  master  unless  serious 
injury  threatens  him,  his  family,  or  his  estate.  Courts  will  not 
permit  juries  to  guess  or  speculate,  when,  from  the  undisputed 
evidence,  it  is  apparent  that  the  order  of  the  master  was  reasonable, 
and  that  the  servant  was  guilty  of  insubordination.  The  infer- 
ences from  the  admitted  facts  all  point  one  way.  What  variant 
inferences  are  permissible?  Not  that  the  plaintiff  obeyed  orders, 
for  it  is  conceded  that  he  did  not;  not  that  he  was  in  danger  of 
serious  injury,  for  he  had  a  summary  remedy  in  his  own  hands, 
which  he  could  resort  to  at  once  without  leaving  his  duties;  not 
that  it  was  necessary  to  at  once  start  a  slander  suit  to  protect  his 
reputation,  for  no  slanderous  words  had  been  spoken  concerning 
him;  not  that  he  went  to  Buffalo  as  superintendent,  to  consult  the 
counsel  of  the  company,  for  he  did  not  so  claim  upon  the  trial. 
He  went,  as  he  stated,  for  personal  reasons,  to  consult  his  own 
counsel  upon  a  subject  which  was  neither  important  nor  urgent. 

When  the  contract  is  properly  construed,  we  find  no  evidence 
to  warrant  the  inference  that  the  order  of  the  master  was  unreason- 
able, or  the  conduct  of  the  servant  justifiable.     He  had  been  ab- 
sent without  leave  several  times  during  a  short  period.     The  mas- 
ter, by  retaining  him  after  knowledge  of  these  breaches  of  duty, 
did  not  prevent  their  use  as  grounds  of  discharge  when  the  of- 
fense was  repeated.    Gray  v.  Shepard,  147  N.  Y.  177,  41  N.  E.  500; 
Arkush  v.  Hanan,  60  Hun,  518,  15  N.  Y.  Supp.  219.     After  ample 
warning,   he  persisted  in   disobedience,  and  the  master  was  not 
compelled  to  retain   in   its  employment   a  servant  who   willfully 
violated  its  lawful  orders.     The  absence,  considering  the  nature 
of  the  business  and  the  character  of  the  duties,  was  not  within  the 
contemplation  of  the  contract  and  was  inconsistent  with  the  object 
of  the  servant's  engagement,  which  was  to  advance  the  master's 
interest.     Whether  it  resulted  in  actual  injury  to  the  business  of 
the  defendant  is  not  the  question,  for  it  had  that  tendency,  and 
would  naturally  have  that  effect  in  a  large  factory,  where  some- 
thing was  liable  to  occur  at  any  moment  which  would  require  the 
presence  of  the  superintendent.     It   was  a  violation  of  duty   as 
matter  of  law,  which  justified  the  master  in  discharging.     The  ac- 
tion of  the  servant  was  not  the  result  of  a  mistake,  for  he  was 
not  told  not  to  go,  but  was  willful;    and,  indeed,  it  seems  as  if, 
encouraged  by  previous  litigation  with  two  diff'erent  employers, 
he  courted  a  discharge.    The  contract  and  the  undisputed  evidence 
conclusively  established  the  right  of  the  master  to  discharge,  and 
the  motion  to  direct  a  verdict  for  the  defendant  should  have  been 
granted. 


314  MASTER  AND  SERVANT 

The  judgment  appealed  from  should  therefore  be  reversed,  but, 
as  further  evidence  may  be  given  upon  another  trial,  we  do  not  dis- 
miss the  complaint,  but  grant  a  new  trial,  with  costs  to  abide 
event.' 


III.  Remedies  for  Breach  of  Contract — Damages  * 


McMULLEN  V.  DICKINSON  CO. 

(Supreme  Court  of  Minnesota,  1895.    60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A. 

409,  51  Am.  St.  Rep.  511.) 

Action  by  William  McMullen  against  the  Dickinson  Company. 
From  an  order  sustaining  a  demurrer  to  the  answer,  defendant 
appeals. 

Canty,  J.  On  the  25th  of  February,  1892,  the  plaintiff  entered 
into  a  written  agreement  with  the  defendant  corporation,  whereby 
it  agreed  to  employ  him  as  its  assistant  manager,  from  and  after 
that  date,  as  long  as  he  should  own  in  his  own  name  50  shares 
of  the  capital  stock  of  said  corporation,  fully  paid  up,  and  the 
business  of  said  corporation  shall  be  continued,  not  exceeding  the 
term  of  the  existence  of  said  corporation,  and  pay  him  for  such 
services  the  sum  of  $1,500  per  annum,  payable  monthly  during 
that  time,  and  whereby  he  agreed  to  perform  said  services  during 
that  time.  He  has  ever  since  owned,  as  provided,  the  50  shares 
of  said  stock,  and  performed  said  services  ever  since  that  time 
until  the  28th  of  October,  1893,  when  he  was  discharged  and  dis- 
missed by  the  defendant  without  cause.  He  alleges  these  facts 
in  his  complaint  in  this  action,  and  also  alleges  that  he  has  been 
ever  since  he  was  so  dismissed,  and  is  now,  ready  and  willing  to 
perform  said  services  as  so  agreed  upon,  and  that  there  is  now 
due  him  the  sum  of  $125  for  each  of  the  months  of  March  and 
April,  1894,  and  prays  judgment  for  the  sum  of  $250. 

The  defendant  in  its  answer,  for  a  second  defense,  alleges  that 
on  March  2,  1894,  plaintiff  commenced  a  similar  action  to  this  for 
the  recovery  of  the  sum  of  $512,  for  the  period  of  time  from  his 
said  discharge  to  the  1st  of  March,  1894,  alleging  the  same  facts 
and  the  same  breach,  and  that  on  April  16,  1894,  he  recovered  judg- 
ment in  that  action  against  this  defendant  for  that  sum  and  costs, 

8  Compare  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712 
(1886).     See,  also,  Nelichlta  v.  Esterly  &  Heineman,  post,  p.  318. 

7  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  Rel.  (3d  Ed.)  §§ 
262,  263. 


REMEDIES   FOR  BREACH   OF  CONTRACT — DAMAGES  315 

and  this  is  pleaded  in  bar  of  the  present  action.  The  plaintiff  de- 
murred to  this  defense,  and  from  an  order  sustaining  the  demurrer 
the  defendant  appeals. 

The  plaintiff  brought  each  action  for  installments  of  wages 
claimed  to  be  due,  on  the  theory  of  constructive  service.  The  doc- 
trine of  constructive  service  was  first  laid  down  by  Lord  Ellen- 
borough  in  Gandell  v.  Pontigny,  4  Camp.  375,  and  this  case  was 
followed  in  England  and  this  country  for  a  long  time  (Wood,  Mast. 
&  Serv.  254),  and  is  still  upheld  by  several  courts  (Isaacs  v.  Da- 
vies,  68  Ga.  169;  Armfield  v.  Nash,  31  Miss.  361;  Strauss  v.  Aleer- 
tief,  64  Ala.  299,  38  Am.  Rep.  8).  It  has  been  repudiated  by  the 
courts  of  England-  (Goodman  v.  Pocock,  15  Adol.  &  E.  [N.  S.] 
574;  Wood,  Mast.  &  Serv.  254),  and  by  many  of  the  courts  in  this 
country  (Id.;  and  notes  to  Decamp  v.  Hewitt,  43  Am.  Dec.  204), 
as  unsound  and  inconsistent  with  itself,  as  it  assumes  that  the  dis- 
charged servant  has  since  his  discharge  remained  ready,  willing, 
and  able  to  perform  the  services  for  which  he  was  hired,  while 
sound  principles  require  him  to  seek  employment  elsewhere,  and 
thereby  mitigate  the  damages  caused  by  his  discharge.  His  rem- 
edy is  for  damages  for  breach  of  the  contract,  and  not  for  wages 
for  its  performance.  But  the  courts,  which  deny  his  right  to  re- 
cover wages  as  for  constructive  service,  have  denied  him  any  rem- 
edy except  one  for  damages,  which,  if  seemingly  more  logical  in 
theory,  is  most  absurd  in  its  practical  results.  These  courts  give 
him  no  remedy  except  the  one  which  is  given  for  the  recovery  of 
loss  of  profits  for  the  breach  of  other  contracts,  and  hold  that  the 
contract  is  entire,  even  though  the  wages  are  payable  in  install- 
ments, and  that  he  exhausts  his  remedy  by  an  action  for  a  part  of 
such  damages,  no  matter  how  long  the  contract  would  have  run  if 
it  had  not  been  broken.  See  James  v.  Allen  Co.,  44  Ohio  St.  226,  6 
N.  E.  246,  58  Am.  Rep.  821 ;  Moody  v.  Leverich,  4  Daly  (N.  Y.) 
401;  Colburn  v.  Woodworth,  31  Barb.  (N.  Y.)  381;  Booge  v. 
Railroad  Co.,  33  Mo.  212,  82  Am.  Dec.  160. 

No  one  action  to  recover  all  the  damages  for  such  a  breach  of 
such  a  contract  can  furnish  any  adequate  remedy,  or  do  anything 
like  substantial  justice  between  the  parties.  By  its  charter  the 
life  of  this  corporation  is  thirty  years.  If  the  action  is  commenced 
immediately  after  the  breach,  how  can  prospective  damages  be  as- 
sessed for  this  thirty  years,  or  for  even  one  year?  To  presume  that 
the  discharged  servant  will  not  be  able  for  a  large  part  of  that 
time  to  obtain  other  employment  and  award  him  large  damages, 
might  be  grossly  unjust  to  the  defendant.  Again,  the  servant  is 
entitled  to  actual  indemnity,  not  to  such  speculative  indemnity  as 
must  necessarily  be  given  by  awarding  him  prospective  damages. 
His  contract  was  not  a  speculative  one,  and  the  law  should  not 
make  it  such.    That  men  can  and  do  find  employment  is  the  gen- 


316  MASTER  AND   SERVANT 

eral  rule,  and  enforced  idleness  the  exception.  It  should  not  be 
presumed  in  advance  that  the  exceptional  will  occur.  This  is  not 
in  conflict  with  the  rule  that,  in  an  action  for  retrospective  dam- 
ages for  such  a  breach,  the  burden  is  on  the  defendant  to  show  that 
the  discharged  servant  could  have  found  employment.  In  that 
case,  as  in  others,  reasonable  diligence  will  be  presumed.  When 
it  appears  that  he  has  not  found  employment  or  been  employed, 
there  is  no  presumption  that  it  was  his  fault,  and,  under  such  cir- 
cumstances, it  will  -be  presumed  that  the  exceptional  has  happened. 
But  to  presume  that  the  exceptional  will  happen  is  very  different. 
In  an  action  for  such  a  breach  of  a  contract  for  services,  prospec- 
tive damages  beyond  the  day  of  trial  are  too  contingent  and  un- 
certain, and  cannot  be  assessed.  2  Suth.  Dam.  471 ;  Gordon  v. 
Brewster,  7  Wis.  355;  Fowler  &  Proutt  v.  Armour,  24  Ala.  194; 
Wright  V.  Falkner,  37  Ala.  274;  Colburn  v.  Woodworth,  31  Barb. 
385.  Then,  if  the  discharged  servant  can  have  but  one  action,  it  is 
necessary  for  him  to  starve  and  wait  as  long  as  possible  before 
commencing  it.  If  he  waits  longer  than  six  years  after  the  breach, 
the  statute  of  limitations  will  have  run,  and  he  will  lose  his  whole 
claim.  If  he  brings  his  action  within  the  six  years,  he  will  lose 
his  claim  for  the  balance  of  the  time  after  the  day  of  trial. 

Under  this  rule,  the  measure  of  damages  for  the  breach  of  a 
thirty  year  contract  is  no  greater  than  for  the  breach  of  a  six  or 
seven  year  contract.  Such  a  remedy  is  a  travesty  on  justice.  Al- 
though the  servant  has  stipulated  for  a  weekly,  monthly,  or  quar- 
terly income,  it  assumes  that  he  can  live  for  years  without  any 
income,  after  which  time  he  will  cease  to  live  or  need  income.  The 
fallacy  lies  in  assuming  that,  on  the  breach  of  the  contract,  loss 
of  wages  is  analogous  to  loss  of  profits,  and  that  the  same  rule  of 
damages  applies,  while  in  fact  the  cases  are  wholly  dissimilar,  and 
there  is  scarcely  a  parallel  between  them.  In  the  one  case  the  lia- 
bility is  absolute;  in  the  other  it  is  contingent.  If  the  rule  of  dam- 
ages were  the  same,  then,  in  the  case  of  the  breach  of  the  contract 
for  service,  the  discharged  servant  should  be  allowed  only  the 
amount  which  the  stipulated  wages  exceed  the  market  value  of 
the  service  to  be  performed,  without  regard  to  whether  he  could 
obtain  other  employment  or  not.  If  the  stipulated  wages  did  not 
exceed  the  market  value  of  the  service,  he  would  be  entitled  to  only 
nominal  damages;  and  in  no  case  could  his  failure  to  find  other 
employment  vary  the  measure  of  damages.  Clearly,  this  is  not  the 
rule.  In  the  one  case  the  liability  is  a  contingent  liability  for  loss 
of  wages;  in  the  other  case  it  is  an  absolute  liability  for  loss  of 
profits.  Such  contingent  liability  cannot  be  ascertained  in  advance 
of  the  happening  of  the  contingency,  and  that  is  why  prospective 
damages  for  loss  of  wages  are  too  contingent  and  are  too  specu- 


REMEDIES    FOR   BREACH    OF    CONTRACT — DAMAGE8  317 

lative  and  uncertain  to  be  allowed,  while  retrospective  damages  for 
such  loss  are  of  the  most  certain  character.  On  the  other  hand,  if 
damages  for  loss  of  profits  are  too  speculative  and  uncertain  to  be 
allowed,  they  are  equally  sOj  whether  prospective  or  retrospective. 
"The  pecuniary  advantages  which  would  have  been  realized  but 
for  the  defendant's  act  must  be  ascertained  without  the  aid  which 
their  actual  existence  would  afford.  The  plaintiff's  right  to  recover 
for  such  a  loss  depends  on  his  proving  with  sufficient  certainty  that 
such  advantages  would  have  resulted,  and,  therefore,  that  the  act 
complained  of  prevented  them."     1  Suth.  Dam.  (1st  Ed.)  107. 

It  is  our  opinion  that  the  servant  wrongfully  discharged  is  en- 
titled to  indemnity  for  loss  of  wages,  and  for  the  full  measure  of 
this  indemnity  the  master  is  clearly  liable.  This  liability  accrues 
by  installments  on  successive  contingencies.  Each  contingency 
consists  in  the  failure  of  the  servant  without  his  fault  to  earn, 
during  the  installment  period  named  in  the  contract,  the  amount 
of  wages  which  he  would  have  earned  if  the  contract  had  been  per- 
formed, and  the  master  is  liable  for  the  deficiency.  This  rule  of 
damages  is  not  consistent  with  the  doctrine  of  constructive  serv- 
ice, but  it  is  the  rule  which  has  usually  been  applied  by  the  courts 
which  adopted  that  doctrine.  Under  that  doctrine  the  master 
should  be  held  liable  to  the  discharged  servant  for  wages  as  if 
earned,  while  in  fact  he  is  held  only  for  indemnity  for  loss  of 
wages.  The  fiction  of  constructive  service  is  false  and  illogical, 
but  the  measure  of  damages  given  under  that  fiction  is  correct  and 
logical.  It  is  simply  a  case  of  a  wrong  reason  given  for  a  correct 
rule.  Instead  of  rejecting  the  false  reason  and  retaining  the  cor- 
rect rule,  many  courts  have  rejected  both  the  rule  and  the  reason. 

In  our  opinion,  this  rule  of  damages  should  be  retained;  but  the 
true  ground  on  which  it  is  based  is  not  that  of  constructive  service, 
but  the  liability  of  the  master  to  indemnify  the  discharged  servant, 
not  to  pay  him  wages,  and  this  indemnity  accrues  by  installments. 
The  original  breach  is  not  total,  but  the  failure  to  pay  the  succes- 
sive installments  constitutes  successive  breaches.  Since  the  days 
of  Lord  EUenborough  this  class  of  cases  has  been  in  some  courts 
an  exception  to  the  rule  that  there  can  be  but  one  action  for  dam- 
ages for  the  breach  of  a  contract,  and  there  are  strong  reasons  why 
it  should  be  an  exception.  Because  the  discharged  ser\^ant  may, 
if  he  so  elects,  bring  successive  actions  for  the  installments  of  in- 
demnity as  they  accrue,  it  does  not  follow  that  he  cannot  elect 
to  consider  the  breach  total,  and  bring  one  action  for  all  his  dam- 
ages, and  recover  all  of  the  same  accruing  up  to  the  time  of  trial. 
Fowler  &  Proutt  v.  Armour,  24  Ala.  194;  Strauss  v.  Meertief,  64 
Ala.  299,  38  Am.  Rep.  8.  But  the  wrongdoer  can  have  no  such 
election.    He  should  not  be  allowed  to  take  advantage  of  his  own 


318  MASTER  AND   SERVANT 

wrong,  and,  for  the  purpose  of  preventing  the  use  of  any  adequate 
remedy  and  defeating  any  adequate  recovery,  to  insist  that  his  own 
breach  is  total. 

The  order  appealed  from  should  be  affirmed.    So  ordered.' 


IV.  Rights,  Duties,  and  Liabilities  Inter  Se  • 
1.  Right  to  Wages 


NELICHKA  v.  ESTERLY  &  HEINEMAN. 

(Supreme  Court  of  Minnesota,  1882.    29  Minn.  146,  12  N.  W.  457.) 

Berry,  J.  The  evidence  in  this  case  shows  that  plaintiff  was  in 
defendants'  employ  under  an  engagement  to  work  for  them  for 
the  entire  month  of  December  for  $50;  that  plaintiff  left  defend- 
ants' service  on  December  23d,  and  remained  away  for  four  days 
without  any  excuse,  and  not  only  without  defendants'  consent,  but 
in  the  face  of  their  express  objection,  and  that  defendants  refused 
to  permit  him  to  re-enter  their  service  upon  his  return  is  undis- 
puted, and  in  fact  admitted  by  both  parties.  The  contract  was, 
then,  entire.  The  plaintiff  did  not  perform  on  his  part.  He  offers 
no  excuse  for  his  non-performance,  but,  on  the  contrary,  his  fail- 
ure to  perform  was  wholly  his  own  wilful  fault.  In  such  a  state 
of  facts  he  is  not  entitled  to  recover  anything  for  the  partial  per- 
formance of  his  engagement;  namely,  for  the  work  performed  by 
him  prior  to  leaving  defendants'  service  on  December  23d.  Mete. 
Cont.  8;  Mason  v.  Heyward,  3  Minn.  182  (Gil.  116);  Williams 
V.  Anderson,  9  Minn.  50  (Gil.  39)  ;  Stees  v.  Leonard,  20  Minn.  494 
(Gil.  448);  Weber  v.  Clark,  24  Minn.  354;  Beach  v.  Mullin,  34 
N.  J.  Law,  343. 

The  verdict  is  entirely  unsupported  by  the  evidence,  and  the 
judgment  is  accordingly  reversed. 

8  See,  also,  Sutherland  v.  Wyer,  67  Me.  64  (1877) ;  Howard  v.  Daly,  61  N. 
Y.  362,  19  Am.  Rep.  285  (1875);  Liddell  v.  Chidester,  84  Ala.  508,  4  South. 
426,  5  Am.  St.  Rep.  387  (1887);  Olmstead  v.  Bach,  78  Md.  132,  27  Atl.  501, 
22  L.  R.  A.  74,  44  Am.  St.  Rep.  273  (1893) ;  Cutter  v.  Gillette,  163  Mass.  95, 
39  N.  E.  1010  (1895). 

8  For  discussion  of  principles,  see  TifEany,  Persons  &  Dom.  ReL  (3d  Ed.)  |S 
265-271. 


RIGHTS,  DUTIES,  AND   LIABILITIES  INTER  SE  319 


DAVIDSON  V.  LAUGHLIN. 

(Supreme  Court  of  California,  1903,     138  Cal.  320,  11  Pac.  345,  5  L.  R.  A. 

[N.  S.]  579.) 

Action  by  A.  N.  Davidson  against  Homer  Laughlin.    Judgment 
for  plaintiff,  and  defendant  appeals. 

McFarland,  J.^°     *     *     *     The  action  is  for  the  recovery  of  the 
reasonable  value  of  certain   services  rendered  by  plaintiff  to   de- 
fendant.   These  facts  were  averred  in  the  complaint  and  found  by 
the  court:    Plaintiff  was  in  the  employment  of  defendant  from  the 
1st  day  of  October,  1896,  to  the  25th  day  of  July,  1898;    but  for 
services  rendered  prior  to  May  1,  1897,  plaintiff  was  paid,  and  they 
form  no  part  of  the  matters  here  in  litigation.    As  to  what  plaintiff 
was  to  receive  for  his  services  after  May  1,  1897,  there  was  no  ex- 
press agreement  between  the  parties  until  June  20th  of  that  year. 
Defendant  was  then  engaged  in  the  erection  of  a  six-story  building, 
and  it  was  in  connection  with  this  building,  and  some  other  matters, 
that  plaintiff  was  employed.     The  parties,  on  said  June  20th,  had 
a  conference  about  what  plaintiff's  compensation  should  be  during 
the  progress  of  the  construction  of  the  building,  which  resulted 
in  a  contract  that  when  the  building  should  be  completed  and  the 
tenants  should  commence  to  pay  rent,  plaintiff  should  be  perma- 
nently employed  by  defendant  as  his  agent  in  the  management  of 
the  building,  "keeping  the  same  rented,  and  collecting  the  rents, 
and  attending  to  the  repairs  and  all  other  useful  services  in  the 
proper  management  of  the  said  building,"  and  that  defendant  would 
pay  for  his  services  as  such  agent  $150  per  month;    and  plaintiff, 
in  consideration  that  he  be  so  employed  as  agent  after  the  com- 
pletion of  the  building,  and  paid  said  compensation,  agreed  that 
he  would  take  for  his  services  from  May  1,  1897,  to  the  time  of  the 
completion  of  the  building,  $60  per  month.    The  building  was  com- 
pleted and  tenants  commenced  to  pay  rent  on  July  12,  1898;   but 
on   July  25th,— 13   days   later, — "without   any   reasonable  or   lawful 
cause  or  excuse  whatever,  the  defendant  discharged  plaintiff  from 
his  employment,"  and  has  ever  since  refused  to  allow  him  to  per- 
form any  services  as  such  agent,  or  to  pay  him  therefor.    The  rea- 
sonable value  of  the  plaintift''s  services  from  May  1,  1897,  to  the 
time  of  his  discharge  on  July  25,  1898,  was  $150  per  month,  amount- 
ing to  $2,225.     Of  this  amount  $500  had  been  paid,  and  the  court 
rendered  judgment  for  the  balance.     *     *     * 

As  to  the  questions  of  law  involved  in  the  case,  it  seems  clear 
that,  as  the  agreement  of  appellant  to  employ  respondent  as  agent 
of  the  building  after  its  completion  at  the  agreed  compensation 
was  the  consideration  of  the  latter's  agreement  to  take  $60  per 

10  Part  of  the  opinion  is  omitted. 


320  MASTER  AND   SERVANT 

month  for  his  previous  services,  the  failure  of  appellant  to  so  em- 
ploy respondent  was  a  breach  of  the  contract,  which  released  the 
latter  therefrom,  and  authorized  him  to  treat  it  as  rescinded,  and 
to  recover  for  his  services  what  they  were  reasonably  worth.  This, 
of  course,  is  the  general  rule  applicable  to  such  case,  and  it  is  too 
elementary  to  need  reference  to  authorities. 

It  is  contended,  however,  that  the  rule  does  not  apply  in  the  case 
at  bar,  because  the  contract  for  permanent  employment  was  only  for 
an  indefinite  time,  that  it  cannot  be  specifically  enforced,  and  that 
it  could  be  terminated  by  either  party  upon  reasonable  notice.  But 
this  is  not  an  action  to  compel  a  specific  performance  of  the  con- 
tract for  employment  after  the  completion  of  the  building,  nor  to 
recover  compensation  for  his  services  after  such  completion,  nor 
to  recover  future  profits  which  respondent  might  have  earned  after 
that  time  if  appellant  had  complied  with  his  said  promise  of  future 
employment.  The  action  is  for  services  rendered  prior  to  the  time 
when  the  future  employment  at  $150  was  to  commence.  It  is  based 
upon  the  theory  that  appellant's  promise  of  the  future  employment 
was  the  consideration  of  respondent's  promise  to  do  the  previous 
work  for  a  compensation  much  less  than  its  real  value,  that  each 
of  said  promises  was  part  of  the  contract,  and  that  appellant's  re- 
fusal to  perform  his  said  promise  abrogated  the  contract,  and  enti- 
tled respondent  to  recover  the  reasonable  value  of  his  past  serv- 
ices. This  theory  is  well  founded  in  legal  principles,  as  it  is  in 
considerations  of  justice  and  fair  dealing.  *  *  *  Judgment  af- 
firmed. 


V.  Same — Master's  Liability  for  Injuries  to  Servant  ^' 
1.  Defective;  Appliances 


SPARKS  V.  RIVER  &  HARBOR  IMPROVEMENT  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1907.    74  N.  J.  Law,  818,  67  AtL 

600.) 

Action  by  Everett  S.  Sparks  against  the  River  &  Harbor  Im- 
provement Company.  Judgment  for  plaintiff.  Defendant  brings 
error. 

Trenchard,  J. 12  *  *  *  Everett  S.  Sparks,  the  plaintiff  be- 
low, was  employed  by  the  River  &  Harbor  Improvement  Company, 

11  For  discussion  of  principles,  see  Tiffany,  Persons  &  Dom.  ReL  (3d  Ed.) 
§§  272-275. 

12  Part  of  the  opinion  Is  omitted. 


master's  liability  for  injuries  to  servant  321 

the  defendant  below,  as  a  fireman  and  oiler,  and  while  at  work 
about  a  double-cylinder  engine  upon  a  mud  scow  belonging  to  the 
defendant  the  engine  became  "stuck  on  center."  The  captain  of 
the  scow  told  the  plaintiff  to  pry  it  ofif.  The  captain  shut  ofif  the 
steam,  and  plaintiff  took  a  crowbar  and  applied  it  to  the  cogwheels 
in  the  same  manner  as  he  had  seen  the  captain  and  others  do. 
While  he  was  doing  this,  the  steam,  notwithstanding  the  fact  that 
it  had  been  shut  off,  escaped  into  the  cylinder  and  caused  the  en- 
gine to  start.  The  crowbar  hit  the  plaintiff  in  the  mouth,  knocked 
him  down,  and  rendered  him  unconscious.  His  arm  caught  in  the 
cogwheels,  and  he  was  seriously  injured. 

At  the  close  of  the  plaintiff's  testimony  a  motion  was  made  to 
nonsuit  the  plaintiff  upon  two  grounds :  First,  that  there  was  no 
negligence  shown  on  the  part  of  the  defendant ;  and,  second,  that 
the  danger  was  obvious  to  the  plaintiff.  At  the  end  of  the  case 
a  motion  was  made  that  a  verdict  be  directed  in  favor  of  the  de- 
fendant for  the  same  reasons  as  were  urged  on  the  motion  to  non- 
suit. Both  of  these  motions  were  denied  by  the  trial  judge  and 
exceptions  prayed  and  allowed,  and  the  case  was  submitted  to 
the  jury.    The  jury  found  a  verdict  for  the  plaintiff  below.     *     ♦     * 

The  first  question,  therefore,  is  this:  Was  the  defendant  com- 
pany negligent?  If  negligent  at  all,  the  company  was  negligent  in 
failing  to  take  reasonable  care  to  furnish  plaintiff  safe  appliances 
in  and  about  his  work.  The  trial  judge  excluded  from  the  con- 
sideration of  the  jury  the  theory  of  negligence  because  the  engine 
was  an  old  one  and  that  it  frequently  became  centered,  on  the 
ground  that  these  facts  were  known  to  the  plaintiff,  and  he  as- 
sumed whatever  risk  came  from  them.  He  instructed  the  jury  that 
the  only  negligence  upon  which  a  verdict  in  favor  of  the  plaintiff 
could  be  based  grew  out  of  the  character  of  the  valve  which  was 
furnished  to  control  the  supply  of  steam  to  the  steam  chest  and 
cylinder.  It  is  the  accepted  law  of  this  state  that  a  master's  duty 
to  his  servant  requires  of  the  former  the  exercise  of  reasonable  care 
and  skill  in  furnishing  suitable  machinery  and  appliances  for  carry- 
ing on  the  business  in  which  he  employs  his  servant.  Comben  v. 
Belleville  Stone  Co.,  59  N.  J.  Law,  226,  36  Atl,  473 ;  Steamship  Co. 
V.  Ingebregsten,  57  N.  J.  Law,  400,  31  Atl.  619,  51  Am.  St.  Rep. 
604. 

Applying  this  principle  to  the  case  in  hand,  it  is  manifest  that 
it  was  the  duty  of  the  defendant  to  use  reasonable  care  to  provide 
a  safe  valve.  This  duty  of  the  master  would  have  been  discharged 
by  providing  a  valve  which  was  in  common  and  ordinary  use,  and 
which  was  reasonably  safe  and  fit  for  the  purpose  to  which  it  was 
applied,  Tompkins  v.  Machine  Co.,  70  N,  J.  Law,  330,  58  Atl.  393. 
But  there  was  evidence  tending  to  show  that  the  valve  in  question 

COOLEY  P.&  D.Rel.— 21 


322  MASTER  AND  SERVANT 

was  not  one  in  common  or  ordinary  use,  and  not  reasonably  safe 
for  the  purpose  used.  It  was  what  was  known  as  a  "butterfly" 
valve.  The  expert  called  by  the  defendant  said :  "We  haven't  used 
them  [the  butterfly  valves]  very  often  only  on  this  one  dredge," 
The  expert  called  by  the  plaintiff  testified  as  follows:  "Q.  Mr.  Gil- 
pin, is  a  butterfly  valve  regarded  nowadays  as  a  safe  valve  to  use? 
A.  No.  It  is  usually  used  as  an  emergency  stop  valve  in  steam 
practice,  to  put  in  the  main  pipe  to  shut  ofif  the  valve  in  an  emer- 
gency, when  an  accident  occurs,  or  a  break  in  the  pipe,  to  give  them 
time  to  close  the  regular  valves,  as  a  rule.  Q.  It  is  used,  then,  in 
conjunction  with  a  better  valve?  A.  Oh,  yes,  yes;  it  is  very  un- 
certain, for  the  simple  reason  that  it  depends  on  the  bearing.  It 
is  a  disc  that  sets  right  in  the  center  of  the  line  of  direction  of  the 
flow  of  steam,  and  there  is  a  stem  that  runs  through  it  from  one 
side  to  the  other."  He  further  testified,  in  efifect,  that  a  double- 
cylinder  engine  should  not  get  on  center;  that,  if  it  did,  it  proved 
a  defect  in  the  engine ;  and  that,  if  the  steam  was  shut  off  and  the 
engine  started  suddenly  when  pried  off  center,  it  indicated  a  defec- 
tive valve.  The  use  of  this  valve  on  the  engine  on  the  mud  scow 
in  question  was  attempted  to  be  justified  because  of  the  necessity 
for  a  quick-acting  valve;  but  that  does  not  justify  the  master  in 
using  an  improper  valve.  In  view  of  the  testimony,  and  its  vari- 
ous legitimate  inferences,  we  think  there  was  at  least  a  debatable 
question  raised  as  to  the  negligence  of  the  defendant. 

The  second,  and  only  remaining,  question  for  consideration  is : 
Was  the  danger  obvious  to  the  plaintiff?  We  think  it  quite  clear 
from  the  evidence  that  the  danger  from  the  defective  valve  was 
not  an  obvious  one.  Nor  is  it  clear  from  the  evidence  that  the 
plaintiff  had  knowledge  of  the  danger  or  that  by  the  exercise  of 
reasonable  prudence  he  should  have  had  knowledge  of  it.  While  a 
servant  assumes  the  risk  of  injury  from  obvious  defects  or  dan- 
gers, he  does  not  assume  the  risk  of  injury  from  defects  and  dangers 
which  are  not  obvious  and  of  which  he  had  no  knowledge,  and  could 
not  observe  and  know  by  the  exercise  of  ordinary  care.  Comben  v. 
Belleville  Stone  Co.,  59  "N.  J.  Law,  226,  36  Atl.  473 ;  Atha  &  Illing- 
worth  Co.  V.  Costello,  63  N.  J.  Law,  27,  42  Atl.  7^^.  There  was  tes- 
timony tending  to  show  that  the  plaintiff  had  no  knowledge  of 
steam  valves  or  of  how  engines  were  constructed  or  operated  or  of 
the  mechanical  principles  involved,  and  that  he  had  had  no  instruc- 
tions concerning  those  matters.  Where  there  is  a  fair  dispute  in  the 
evidence,  or  two  classes  of  conclusions  can  reasonably  be  reached 
from  it,  whether  the  injury  to  the  servant  was  the  result  of  the 
failure  of  the  master  to  exercise  the  care  required  to  provide  proper 
machinery  and  appliances  for  the  use  of  the  servant,  or  whether  the 
injury  was  the  result  of  obvious  danger  or  risk  to  the  servant,  or 
the  want  of  ordinary  care  on  his  part  to  observe  dangers  within 


master's  liability  for  injuries  to  servant  323 

his  knowledge,  or  of  which  he  ought  to  have  known  in  the  exer- 
cise of  such  care,  then  a  case  is  made  which  should  be  submitted 
to  the  jury  for  their  determination.  Comben  v.  Belleville  Stone 
Co.,  59  N.  J.  Law,  226,  36  Atl.  473. 

Tested  by  that  rule,  the  present  case  was  properly  submitted 
to  the  jury.  An  examination  of  the  charge  discloses  that  it  was 
accurate  and  proper  in  all  respects.  The  result  is  that  the  judg- 
ment below  should  be  affirmed. 


2.  Assumption  of  Risk 


CHOCTAW,  O.  &  G.  R.  CO.  v.  JONES. 

(Supreme  Court  of  Arkansas,  1906.     77  Ark.  367,  92  S.  W.  244,  4  L.  B,  A. 

[N.  S.]  837.) 

Action  by  Ebenezer  M.  Jones  against  the  Choctaw,  Oklahoma  & 
Gulf  Railroad  Company.  From  a  judgment  for  plaintiff,  defend- 
ant appeals. 

RiDDiCK,  J.^'  This  is  an  appeal  by  a  railroad  company  from  a 
judgment  against  it  for  damages  for  an  injury  to  one  of  its  em- 
ployes while  he  was  acting  under  the  orders  of  a  foreman  in  charge 
of  the  work  upon  which  plaintiff  was  engaged  at  the  time  of  his 
injury.  The  plaintiff  and  three  or  four  other  workmen  were  on 
the  top  of  a  wooden  structure  erected  as  a  support  for  an  iron  rock 
crusher.  The  heavy  iron  part  of  the  rock  crusher  was  lifted  into 
position  by  means  of  a  "traveler"  with  a  crane  attached,  worked 
by  a  steam  engine.  In  placing  the  top  of  the  rock  crusher  in  posi- 
tion the  workmen  had  also  to  use  a  "bent."  This  "bent"  consisted 
of  two  upright  pieces  and  a  cross-piece  some  10  or  15  feet  long, 
connecting  these  two  uprights,  all  of  heavy  timbers  securely  nailed 
and  fastened  together.  The  bottom  of  these  two  uprights  or  legs 
of  the  bent  were  fastened  to  the  top  of  the  wooden  structure,  on 
which  the  rock  crusher  rested.  After  the  bent  had  served  its  pur- 
pose the  foreman  ordered  it  removed.  When  this  order  was  given 
some  one  suggested  that  a  rope  be  used,  so  that  it  could  be  lowered 
gradually.  But  the  foreman  said  that  it  was  unnecessary  to  use 
a  rope,  and  ordered  the  bent  to  be  pushed  over  and  thrown  down. 
As  it  was  pushed  over  the  top  of  the  upright  or  leg  of  the  bent 
next  to  where  the  plaintiff  was  at  work  caught  on  a  bolt  project- 
ing from  the  "traveler."  As  the  other  side  of  the  bent  had  noth- 
ing to  stop  or  control  it,  it  was  pushed  or  fell  forward;    the  side 

IS  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  abridged. 


324  MASTER  AND   SERVANT 

next  to  plaintiff  catching  on  the  projecting  bolt  caused  the  bot- 
tom of  the  leg  on  that  side  to  kick  or  fly  back.  It  struck  plain- 
tiff, knocked  him  to  the  ground,  and  caused  him  serious  injury, 
on  account  of  which  he  recovered  judgment  for  damages,  and  the 
main  question  is  whether  the  facts  support  the  judgment. 

The  liability  of  the  master  for  injuries  to  servants  rests  primarily 
on  the  broad  principle  of  law  that  where  there  is  fault  there  is 
liability,  but  where  there  is  no  fault  there  is  no  liability.  1  Bevens 
on  Negligence,  734.  In  this  case  we  may  say  that,  as  the  foreman 
having  charge  of  the  work  for  the  defendant  stood  in  its  place  as 
its  representative,  if  he  by  negligence  while  acting  as  foreman 
caused  the  injury,  the  plaintiff  can  recover  compensation  therefor 
from  the  defendant,  unless  the  plaintiff  was  guilty  of  contributory 
negligence,  or  unless  the  injury  resulted  from  a  risk  assumed  by 
plaintiff.  The  defendant  not  only  denies  that  it  was  guilty  of  neg- 
ligence, but  it  set  up  both  contributory  negligence  and  assump- 
tion of  the  risk  by  plaintiff  as  defenses  to  the  action  in  this  case. 
There  is,  of  course,  a  distinction  between  the  defense  of  assumed 
risk  and  that  of  contributory  negligence.  The  defense  of  con- 
tributory negligence  rests  on  some  fault  or  omission  of  duty  on 
the  part  of  the  plaintiff,  and  is  maintainable  when,  though  the  de- 
fendant has  been  guilty  of  negligence,  yet  the  direct  or  proximate 
cause  of  the  injury  is  the  negligence  of  the  plaintiff,  but  for  which 
the  injury  would  not  have  happened.  It  applies  when  the  plain- 
tiff is  asking  damages  for  an  injury  which  would  not  have  hap- 
pened but  for  his  own  carelessness.  On  the  other  hand,  the  de- 
fense of  assumed  risk  is  said  to  rest  on  contract,  which  is  gen- 
erally implied  from  the  circumstances  of  the  case ;  it  being  a  term 
which  the  law  imports  into  the  contract,  when  nothing  is  said  to 
the  contrary,  that  the  servant  will  assume  the  ordinary  risks  of 
the  service  for  which  he  is  paid. 

The  defense  of  assumed  risk  comes  within  the  principle  expressed 
by  the  maxim  "Volenti  non  fit  injuria."  This  defense  does  not 
impliedly  admit  negligence  on  the  part  of  the  defendant  and  de- 
feat the  right  of  action  therefor,  as  the  defense  of  contributory 
negligence  does;  for,  where  the  injury  was  the  result  of  a  risk 
assumed  by  the  servant,  no  right  of  action  arises  in  his  favor  at 
all,  as  the  master  owes  no  legal  duty  to  the  servant  to  protect  him 
against  dangers  the  risk  of  which  he  assumed  as  a  part  of  his  con- 
tract of  service.  Narramore  v.  Cleveland  R.  R.  Co.,  96  Fed.  298,  Z7 
C.  C.  A.  499,  48  L.  R.  A.  68.  In  other  words,  the  defense  of  as- 
sumed risk  rests  on  the  fact  that  the  servant  voluntarily,  or  at  least 
without  physical  coercion,  exposed  himself  to  the  danger  and  thus 
assumed  the  risk  thereof.  Having  done  this  of  his  own  accord,  he 
has  no  right,  if  an  injury  results,  to  call  on  another  to  compensate 
him  therefor,  whether  he  was  guilty  of  carelessness  or  not.    Smith 


master's  liability  for  injuries  to  servant  325 

V.  Baker,  1891  Appeal  Cases  (Eng.) ;    opinion  of  Lord  Bowen  in 
Thomas  v.  Quartermaster,  18  Q.  B.  Div.  (Eng.)  685. 

But,  though  the  defenses  of  contributory  negligence  and  assumed 
risk  are  separate  and  distinct,  yet  it  frequently  happens  that  they 
are  both  available  in  the  same  case  and  under  the  same  state  of 
facts.  For  instance,  as  we  have  stated,  a  servant  assumes  all  the 
risks  ordinarily  incident  to  the  service  in  which  he  is  employed, 
and  it  is  also  true  that  he  cannot  recover  for  an  injury  caused  by 
his  own  negligence.  Now  it  may  turn  out  that  the  injury  of  which 
the  servant  complains  was  not  only  due  to  one  of  the  ordinary  risks 
which  the  servant  assumed,  but  that  it  was  also  caused  in  part  by 
his  own  negligence.  In  dealing  with  such  a  case  it  is,  so  far  as  re- 
sults are  concerned,  immaterial  whether  it  be  disposed  of  by  the 
courts  on  the  ground  of  assumed  risk  or  contributory  negligence, 
for  either  of  them  make  out  a  good  defense.  For  this  reason  the 
distinction  between  these  two  defenses  is  not  always  brought  out 
in  the  reported  cases;  it  being  often  unnecessary  to  do  so.  We 
have  thought  it  well  to  point  out  the  distinction  between  them  to 
avoid  any  confusion  of  the  law  in  its  application  to  the  facts  of 
this  case.  In  the  application  of  the  doctrine  of  assumption  of  risks 
a  distinction  must  be  also  made  between  those  cases  where  the  in- 
jury is  due  to  one  of  the  ordinary  risks  of  the  service,  and  when  it 
is  due  to  some  altered  condition  of  the  service,  caused  by  the  negli- 
gence of  the  master.  The  servant  is  presumed  to  know  the  ordi- 
nary risks.  It  is  his  duty  to  inform  himself  of  them,  and  if  he  neg- 
ligently fails  to  do  so  he  will  still  be  held  to  have  assumed  them. 

The  decision  in  the  recent  case  of  Grayson-McLeod  Co.  v.  Carter, 
76  Ark.  69,  88  S.  W.  597,  rests  on  that  ground,  as  do  many  other 
cases  found  in  the  Reports.  But  the  servant  is  not  presumed  to 
know  of  risks  and  dangers  caused  by  the  negligence  of  the  master 
after  he  enters  the  service,  which  change  the  conditions  of  the 
service.  If  he  is  injured  by  such  negligence  he  cannot  be  said  to 
have  assumed  the  risk,  in  the  absence  of  knowledge  on  his  part 
that  there  was  such  a  danger;  for,  as  we  have  before  stated,  the 
doctrine  of  assumed  risk  rests  on  consent,  but,  if  the  injury  was 
caused  in  part  by  his  own  negligence,  he  may  be  guilty  of  con- 
tributory negligence.  On  the  other  hand,  if  he  realizes  the  danger 
and  still  elects  to  go  ahead  and  expose  himself  to  it,  then,  although 
he  acts  with  the  greatest  care,  he  may,  if  injured,  be  held  to  have 
assumed  the  risk.  Mahoney  v.  Dore,  155  Mass.  513,  30  N.  E.  366; 
Lloyd  V.  Hanes,  126  N.  C.  359,  35  S.  E.  611;  Smith  v.  Baker,  1891 
Appeal  Cases. 

Now  the  injury  in  this  case  did  not  result  from  one  of  the  ordi- 
nary risks  of  the  employment  which  a  servant  of  full  age  and  ex- 
perience must  be  presumed  to  have  known,  whether  he  did  so  or 
not.     But,   as  the  jury   found,   it  was  brought  about  during  the 


326  MASTER  AND  SERVANT 

course  of  his  service  by  the  negligence  of  the  foreman,  who  had 
charge  of  the  work  and  in  that  respect  represented  the  defendant. 
Where  the  condition  of  the  service  is  thus  altered,  and  the  servant 
is  brought  face  to  face  with  a  danger  of  that  kind  not  ordinarily 
incident  to  the  work,  then,  as  before  stated,  new  questions  are  pre- 
sented. The  plea  of  the  master  that  the  servant  assumed  the  risk 
is  met  in  such  a  case  by  the  answer  that  the  danger  arose  from  the 
master's  own  negligence,  which  is  not  one  of  the  risks  assumed  by 
the  servant.  This  being  so,  the  master,  to  make  good  his  defense 
of  assumed  risk,  must  go  further  and  show  that  the  servant  volun- 
tarily subjected  himself  to  the  new  danger  with  full  knowledge  and 
appreciation  thereof;  for  such  risk  constitutes  an  addition  to  those 
ordinarily  incident  to  the  service,  and  there  is  no  presumption  that 
he  had  knowledge  of  it,  or  assumed  it. 

This  question  was  thoroughly  considered  and  discussed  by  the 
judges  of  the  House  of  Lords  of  England  in  the  case  of  Smith  v. 
Baker,  Appeal  Cases  1891.  In  that  case  the  plaintiff  was  with 
other  workmen  of  defendant  engaged  in  drilling  holes  in  rock  for 
the  purpose  of  blasting.  Another  set  of  workmen  were,  by  means 
of  a  movable  crane  operated  by  a  steam  engine,  moving  the  stones 
that  had  been  blasted.  These  stones  were  often  without  notice 
swung  over  the  heads  of  plaintiff  and  those  working  with  him.  He 
was  aware  of  the  danger,  but  continued  at  work  without  protest, 
and  was  afterwards  injured  by  a  stone  dropping  upon  him.  In 
discussing  the  question  as  to  whether  the  plaintiff  assumed  the  risk 
by  continuing  at  work  under  those  circumstances,  the  judges  called 
attention  to  the  fact  that  the  maxim  upon  which  the  rule  of  as- 
sumption of  risks  was  based  was  not  "Scienti  non  fit  injuria,"  but 
"Volenti  non  fit  injuria."  A  majority  of  them  therefore  concluded 
that  the  mere  fact  that  the  servant  remained  at  work  after  discov- 
ering the  danger  to  which  he  was  exposed  did  not  authorize  the 
court  to  say  as  a  matter  of  law  that  he  consented  to  assume  the 
risk.  They  held  that  whether  he  did  so  or  not  was  under  the  facts 
of  that  case  a  question  for  the  jury. 

The  justness  of  this  decision  has  been  recognized  by  some  of  the 
American  courts.  Mahoney  v.  Dore,  155  Mass.  513,  30  N.  E.  366; 
Lloyd  V.  Hanes,  126  N.  C.  359,  35  S.  E.  611.  But,  though  this  deci- 
sion of  the  highest  English  court  seems  to  be  logically  sound,  yet 
the  law  in  this  country,  as  settled  by  numerous  decisions,  is  to  some 
extent  different.  The  rule  here  seems  to  be  that  one  who,  knowing 
and  appreciating  the  danger,  enters  upon  a  perilous  work,  even 
though  he  does  so  by  order  of  his  superior,  must  bear  the  risk.  In 
other  words,  even  though  he  may  perform  the  work  unwillingly 
under  orders  from  his  superior,  yet  if  there  was  no  physical  com- 
pulsion, and  if  he  knew  and  appreciated  the  danger  thereof,  he 
will  in  law  be  treated  as  having  elected  to  bear  the  risk,  and  can- 


master's  liability  for  injuries  to  servant  327 

not  hold  the  employer  liable  if  injury  results.  Telephone  Co.  v. 
Woughter,  56  Ark.  206,  19  S.  W.  575 ;  Ferren  v.  Old  Colony  R. 
R.,  143  Mass.  197,  9  N.  E.  608;  Burgess  v.  Davis  Sulphur  Ore  Co., 
165  Mass.  71,  42  N.  E.  501;  Stiller  v.  Bohn  Mfg.  Co.,  80  Minn.  1, 
82  N.  W.  981;  Mundle  v.  Hill  Mfg.  Co.,  86  Me.  400,  30  Atl.  16; 
Ficket  v.  Fibre  Co.,  91  Me.  269,  39  Atl.  996;  Texas  &  Pacific  R. 
R.  Co.  V.  Swearingen,  196  U.  S.  57,  25  Sup.  Ct.  164,  49  L.  Ed.  382; 
C.  Ok.  R.  R.  Co.  V.  McDade,  191  U.  S.  64,  24  Sup.  Ct.  24,  48  L. 
Ed.  96;  Texas  &  Pacific  Ry.  Co.  v.  Archibald,  170  U.  S.  665,  18 
Sup.  Ct.  777,  42  L.  Ed.  1188. 

But  plaintiff  in  this  case  exposed  himself  to  the  danger  in  obe- 
dience to  an  order  of  the  foreman.  As  the  danger  was  brought 
about  by  the  negligence  of  the  foreman,  before  it  can  be  said,  as  a 
matter  of  law,  that  plaintiff  assumed  the  risk  thereof  by  the  mere 
fact  that  he  went  ahead  with  his  work,  it  must  be  clearly  shown 
that  when  he  did  so  he  knew  and  appreciated  the  danger  to  which 
he'  exposed  himself  by  doing  the  work.  But,  as  plaintiff  was  busily 
engaged  in  work  which  required  his  attention,  we  think  it  was 
open  for  the  jury  to  say  that  he  did  not  know  of  or  fully  appre- 
ciate the  danger,  and  that  therefore  he  did  not,  by  continuing  at 
work,  assume  the  risk  of  injury  to  which  he  was  exposed  by  the 
carelessness  of  the  foreman.  Taking  into  consideration  the  fact 
that  it  would  probably  have  been  safe  to  have  pushed  the  "bent" 
over  without  the  use  of  a  rope  to  control  it,  but  for  the  fact  that 
there  was  a  nut  projecting  from  the  traveler  which  was  liable  to 
catch  one  side  of  the  bent,  that  this  danger  escaped  the  attention 
of  the  foreman  whose  duty  it  was  to  guard  against  it,  and  that 
plaintiff's  attention  was  distracted  more  or  less  by  his  work,  we 
think  it  exceedingly  probable  that  he  not  only  did  not  assume  the 
risk  caused  by  the  act  of  the  foreman  in  ordering  the  bent  pushed 
over  without  a  rope  attached  to  control  it,  but  that  he  was  not 
even  aware  of  the  danger  until  too  late  to  escape.  He  knew,  of 
course,  that  the  order  had  been  given  to  push  the  "bent"  over  with- 
out the  use  of  a  rope ;  but  we  think  it  was  open  for  the  jury  to  find 
that  he  did  not  know  and  appreciate  the  danger  to  him  that  this 
order  involved,  and  that  therefore  he  did  not,  by  remaining  at  work, 
assume  the  risk.  Telephone  Co.  v.  Woughter,  56  Ark.  211,  19  S. 
W.  575;  Lloyd  v.  Hanes,  126  N.  C.  359,  35  S.  E.  611;  Mahoney  v. 
Dore,  155  Mass.  513,  30  N.  E.  366;  Burgess  v.  Davis  Sulphur  Ore 
Co.,  165  Mass.  71,  42  N.  E.  501 ;  Alundle  v.  Hill  Mfg.  Co.,  86  ^le. 
400,  30  Atl.  16;  Stiller  v.  Bohn  Mfg.  Co.,  80  Minn.  1,  82  N.  W.  981 ; 
Nofsinger  v.  Goldman,  122  Cal.  609,  55  Pac.  425 ;  Fickett  v.  Fibre 
Co.,  91  Me.  269,  39  Atl.  996;   Shearman  &  Redfield  on  Neg.  §  214. 

The  next  question  is  whether  or  not  plaintiff  was  guilty  of  con- 
tributory negligence.  Now  in  this  case,  as  we  have  before  stated, 
the  plaintiff  when  injured,  was  acting  in  obedience  to  an  order  of 


328  MASTER  AND  SERVANT 

the  foreman  in  charge  of  the  work,  who  represented  the  defendant 
company.  The  order  of  the  foreman  to  push  the  "bent"  over  car- 
ried with  it  an  implied  assurance  that  the  act  could  be  done  with 
reasonable  safety;  for  it  is  the  duty  of  the  master  or  his  repre- 
sentative to  use  due  care,  and  not  to  order  the  servant  to  perform 
an  act  that  he  knows  to  be  unnecessarily  dangerous.  The  servant 
has  the  right  to  rely  upon  the  judgment  of  the  master,  unless  the 
danger  is  so  obvious  that  no  prudent  man  would  incur  it  under 
like  circumstances.  For  this  reason  we  do  not  think  that,  because 
the  plaintiff  and  the  foreman  under  whom  he  was  working  were 
both  in  a  position  to  have  discovered  the  danger  that  caused  this 
injury,  it  necessarily  follows  that,  if  one  was  negligent,  both  were 
negligent.  It  is  true  that  they  were  both  held  to  the  exercise  of 
ordinary  care  only ;  but  what  is  ordinary  care  may  vary  with  the 
circumstances  and  with  the  duty  required,  and  the  duty  required 
of  these  men  and  the  circumstances  under  which  they  acted  were 
different. 

The  plaintiff  was  actually  engaged  in  work  under  the  direction 
of  the  foreman.  When  the  "bent"  was  ordered  pushed  over,  it 
became  necessary  for  him  to  unfasten  the  brace  by  which  it  was 
held  in  position  and  to  draw  the  nails  by  which  the  end  of  the  leg 
of  the  brace  was  fastened  to  the  structure  on  which  it  rested.  This 
required  him  to  look  down,  instead  of  upwards.  He  completed 
this  work  just  as  the  "bent"  began  to  fall.  Up  to  that  time  his 
attention  was  necessarily  directed  to  his  work.  But  the  foreman 
was  doing  no  labor  himself.  He  was  directing  the  labor  of  the 
plaintiff  and  others.  In  order  to  do  this  he  was  standing  on  the 
side  of  the  hill,  a  few  yards  away  from  the  structure,  where  he 
could  overlook  and  direct  the  work.  It  was  his  duty,  before  or- 
dering the  "bent"  thrown  down,  to  ascertain  that  the  execution  of 
his  order  involved  no  unnecessary  danger  to  the  men  engaged  in 
the  work.  When  we  consider  that  the  plaintiff  had  the  right  to 
rely  upon  the  performance  of  this  duty  by  the  foreman,  and  that 
plaintiff's  attention  was  more  or  less  required  by  the  work  he  was 
doing,  it  seems  very  clear  under  the  facts  of  this  case  that  the  jury 
were  justified  in  finding  that  the  foreman  was  guilty  of  negligence, 
but  that  the  plaintiff  was  not,     *     *     ♦     Judgment  affirmed. 


master's  liability  for  injuries  to  servant  329 

MURPHY  V.  GRAND  RAPIDS  VENEER  WORKS. 
(Supreme  Court  of  Michigan,  1906.     142  Mich.  677,  106  N.  W.  211.) 

Action  by  Maggie  Murphy,  as  administratrix  of  James  Murphy, 
deceased,  against  the  Grand  Rapids  Veneer  Works.  There  was  a 
judgment  for  defendant,  and  plaintiff  brings  error. 

McAlvay,  J.^*  Defendant  owned  and  operated  a  veneer  manu- 
factory in  the  city  of  Grand  Rapids.  In  the  four-story  building, 
known  as  "Mill  No.  1,"  in  which  this  business  was  conducted,  was 
an  elevator  used  in  connection  with  the  business,  located  in  a  brick 
shaft  outside  and  on  the  south  side  of  the  factory.  The  south  wall 
of  this  shaft  is  built  thicker  at  the  base  than  at  the  top.  The  ele- 
vator platform  is  14  feet  in  length  north  and  south,  and  7  feet 
in  width  east  and  west.  At  the  first  floor  this  platform  fills  the 
entire  shaft.  At  the  third  floor,  on  account  of  the  wall  being  not 
so  thick,  there  is  a  space  between  the  south  end  of  the  platform 
and  the  south  wall  14  inches  wide  by  7  feet  long.  Thirty-three 
inches  above  the  platform  of  the  elevator  when  at  this  floor,  there 
is  fastened,  as  a  stay  upon  the  top  of  the  sides  of  a  sliding  door 
frame  which  project  up  from  the  story  below,  a  board  4  feet  9 
inches  long,  and  3%  to  5  inches  wide.  It  extends  east  and  west, 
and  its  south  edge  is  8  inches  north  from  this  south  wall.  This 
sliding  door  closes  an  opening  in  the  south  wall  of  the  elevator 
shaft  in  the  story  below.  The  shaft  was  well  lighted.  The  eleva- 
tor platform  was  smooth,  matched  flooring. 

Plaintiff's  decedent  had  worked  for  defendant  company  three 
months.  He  had  charge  of  and  operated  this  elevator  for  about  six 
weeks,  and,  with  another  man,  during  this  time  worked  in  taking 
stock  up  and  down  the  elevator  from  one  floor  to  another  to  and 
from  the  dry  kilns.  A  truck  was  used  to  carry  the  material.  It 
was  17  inches  high,  and  upon  the  top  or  body,  which  was  61  inches 
long  by  39  inches  wide,  were  laid  two  boards  about  10  feet  in 
length  and  9  inches  wide,  placed  two  feet  apart.  Plaintiff's  dece- 
dent was  within  a  few  days  of  20  years  old,  weighed  140  pounds, 
and  was  of  slender  build.  He  was  a  steady  and  ordinarily  intelli- 
gent  workman.  On  April  20,  1903,  while  engaged  in  this  work 
with  the  elevator  at  the  third  floor,  the  accident  occurred.  The 
elevator  was  locked,  and  this  young  man  was  starting  to  go  down 
after  another  load  of  stock,  and  was  drawing  the  truck  onto  the 
elevator  with  his  back  towards  it.  He  whistled  to  his  partner  to 
go  down  with  him.  He  was  stooping  over  with  his  hands  holding 
the  boards  on  the  truck  pulling  it.  He  was  backing  slowly  and 
carefully.  He  suddenly  disappeared,  falling  through  this  opening 
on  the  south  side  of  the  shaft  about  50  feet  to  the  bottom.    He  died 

1*  Part  of  the  opinion  is  omitted. 


330  MASTER  AND   SERVANT 

in  a  few  hours  from  the  injuries  received  from  the  fall.    Nobody 
saw  exactly  how  the  accident  occurred.     *     *     * 

As  to  the  construction  and  dimensions  of  this  elevator  shaft  and 
platform,  and  the  size  and  location  of  this  opening  through  which 
Murphy  fell,  there  is  no  dispute.  At  the  close  of  plaintiff's  case, 
defendant  by  its  counsel  requested  that  the  court  direct  a  verdict 
for  defendant,  on  the  ground  that  plaintiff,  as  appeared  from  the 
evidence,  had  assumed  the  risk  of  his  employment,  and  was  guilty 
of  contributory  negligence.  Such  verdict  was  accordingly  directed, 
upon  the  ground  that  Murphy  had  assumed  the  risk  of  the  employ- 
ment. 

In  determining  the  question  as  to  whether  the  doctrine  of  the 
assumption  of  the  risk  by  the  servant  is  to  be  applied  in  this  case, 
we  must  first  consider  whether  or  not  a  statutory  duty,  under  sec- 
tion 5  of  Act  No.  113  of  the  Public  Acts  of  1901,  was  imposed  upon 
defendant,  a  neglect  of  which  duty  resulted  in  the  injury  to  plain- 
tiff's decedent.  That  part  of  section  5  of  this  act  which  is  claimed 
to  impose  this  duty  provides :  "Sec.  5.  It  shall  be  the  duty  of  the 
owner,  agent,  or  lessee  of  any  manufacturing  establishment  where 
hoisting  shafts  or  well  holes  are  used,  to  cause  the  same  to  be 
properly  inclosed  and  secured."  The  other  provisions  of  the  sec- 
tion relate  to  the  requirement  of  automatic  doors  or  gates  at  all 
elevator  openings,  and  for  the  annual  inspection  by  state  officers 
of  elevator  apparatus. 

The  contention  of  defendant  is  that  this  statutory  duty  imposed 
was  clearly  for  the  purpose  of  preventing  people  from  accidentally 
falling  in  from  the  outside.  May  it  not  be  said  that  the  Legisla- 
ture considered  the  safety  of  employes  whose  duty  brought  them 
continually  in  contact  with  these  dangerous  places  on  the  inside  as 
well  as  on  the  outside  of  elevators?  That  the  legislative  intent 
was  to  protect  everybody  who  might  be  in  danger  of  injury?  If 
the  construction  insisted  upon  by  the  defendant  is  given,  then  this 
elevator  shaft  built  outside  the  building  with  doors  opening  into 
it  from  the  different  floors  was  properly  inclosed  and  secured,  and 
no  further  duty  was  imposed  upon  defendant.  No  argument  is 
necessary  to  show  that  an  opening  14  inches  wide  and  7  feet  long 
between  the  edge  of  an  elevator  platform  and  the  wall  of  the  shaft, 
if  not  inclosed,  is  an  unsafe  and  dangerous  place  to  every  person 
who  goes  up  or  down  on  that  elevator.  If  the  statute  requires  only 
such  inclosure  and  security  as  will  prevent  people  from  the  outside 
from  falling  in,  then  this  space  between  the  platform  and  the  wall 
might  be  of  any  dimensions. 

In  the  case  at  bar  it  may  be  well  said  that  this  shaft  on  the  south 
side  was  never  inclosed  and  secured.  This  space  was  left  by  build- 
ing a  lighter  wall  for  the  upper  stories.  It  was  of  no  use  or  neces- 
sity for  the  conduct  of  business.     But  whether  a  shaft  is  built 


master's  liability  for  injuries  to  servant  331 

within  or  without  a  manufactory,  our  construction  of  the  statute 
is  that  it  required  such  shaft  to  be  properly  inclosed  and  secured 
to  protect  all  who  had  occasion  to  use  it,  and  that  in  this  case 
that  statutory  duty  had  not  been  performed  by  defendant. 

This  court  has  held  that  the  assumption  of  risk  by  the  servant 
arises  from  the  contract  of  employment,  and  the  doctrine  cannot 
be  applied  where  a  statutory  duty  has  been  neglected,  for  the  rea- 
son that  a  master  cannot  legally  contract  to  violate  a  statute.  Sipes 
V.  Mich.  Starch  Co.,  137  Mich.  258,  100  N.  W.  447,  citing  Narra- 
more  v.  Railway  Co.,  Z7  C.  C.  A.  500,  96  Fed.  298,  48  L.  R.  A.  68. 

Upon  this  question  these  cases  rule  the  case  at  bar.  *  *  * 
Judgment  reversed. 


3.  Negligence  of  Fellow  Servants 


LOUISVILLE  &  N.  R.  CO.  v.  BROWN. 

(Court  of  Appeals  of  Kentucky,  190S.     127  Ky.  732,  106  S.  W.  795,  13  L.  R. 

A.  [N.  S.]  1135.) 

Action  by  Harry  Brown  against  the  Louisville  &  Nashville  Rail- 
road Company.  There  was  a  judgment  for  plaintiff,  and  defend- 
ant appeals. 

Carroll,  J.^'^  *  *  *  Appellee,  who  was  a  head  brakeman 
on  one  of  appellant's  freight  trains,  while  riding  in  the  engine, 
was  seriously  injured  in  a  head-on  collision  between  the  engine  in 
which  he  was  riding  and  one  of  appellant's  work  trains.  *  *  * 
It  was  the  duty  of  the  engineer  and  conductor  in  charge  of  the 
work  train  to  know  that  proper  measures  had  been  taken  to  flag 
the  freight,  or  notify  it  that  the  work  train  was  on  the  track.  They 
knew  the  freight  was  due,  and  that  they  were  on  the  main  track 
on  its  time.  Although  the  engineer  testifies  that  he  directed  a 
brakeman  to  flag  the  freight,  and  supposed  he  had  done  so,  his 
attempted  performance  of  duty  will  not  relieve  the  company  from 
liability  for  the  accident.  The  conductor  and  engineer  were  in  con- 
trol of  the  work  train,  and  were  charged  with  the  duty  of  taking 
every  possible  precaution  to  see  to  it  that  timely  warning  was  given 
to  the  approaching  freight.  They,  as  well  as  the  brakeman,  were 
guilty  of  gross  negligence,  although  the  company  would  be  liable 
to  appellee  if  they,  or  the  brakeman  alone,  had  only  been  guilty  of 
ordinary  neglect.  Neither  the  conductor  nor  engineer  on  the  work 
train,  or  the  brakeman  who  participated  in  their  negligence  and 
equally  with  them  was  guilty  of  a  failure  to  discharge  his  duty, 

15  Part  of  the  opinion  is  omitted. 


332  MASTER  AND   SERVANT 

were  fellow  servants  of  appellee  in  the  sense  that  appellee  could 
not  recover  for  their  negligence. 

It  has  been  frequently  ruled  by  this  court  that  a  servant  for  in- 
juries not  resulting  in  death  cannot  recover  from  the  master  for 
the  ordinary  negligence  of  his  superior  officers.  Kentucky  Dis- 
tilleries &  Warehouse  Co.  v.  Schrieber,  7Z  S.  W.  769,  24  Ky.  Law 
Rep.  2236;  C,  N.  O.  &  T.  P.  Ry.  Co.  v.  Palmer,  98  Ky.  382,  33 
S.  W.  199;  Greer  v.  L.  &  N.  R.  R.  Co.,  94  Ky.  169,  21  S.  W.  649, 
42  Am.  St.  Rep.  345 ;  Linck's  Adm'r  v.  L.  &  N.  R.  R.  Co.,  107  Ky. 
370,  54  S.  W.  184.  But  this  doctrine  is  limited  in  its  application  to 
cases  in  which  the  servant  is  injured  by  the  negligence  of  the  su- 
perior officer  who  has  immediate  control  of  or  supervision  over 
him.  To  illustrate:  If  appellee  had  been  injured  by  the  negligence 
of  the  engineer  or  conductor  on  his  train,  he  could  not  recover 
damages  against  the  company  unless  they  were  guilty  of  gross 
neglect.  The  reason  of  this  rule  is  that  the  servant,  when  he  en- 
gaged to  work,  undertakes  that  he  will  assume  the  ordinary  risks 
incident  to  the  employment,  and  will  not  hold  the  master  liable 
for  the  ordinary  negligence  of  those  employes  with  whom  he  is  en- 
gaged, whose  actions  and  conduct  he  can  observe  and,  if  necessary, 
guard  against. 

This  doctrine  of  assumed  risk  by  the  servant  has  been  further 
extended  by  this  court  until  now  it  is  well  established  that  a  serv- 
ant cannot  recover  from  the  master  for  injuries  inflicted  by  the  neg- 
ligence of  a  fellow  servant  in  the  same  grade  of  employment  en- 
gaged in  the  same  field  of  labor,  and  associated  or  working  with 
the  injured  servant,  however  gross  the  negligence  of  the  fellow 
servant  may  be.  Hence,  if  appellee  had  been  injured  by  the  negli- 
gence of  a  fellow  brakeman  on  the  train  he  was  working  on,  with- 
out any  fault  on  the  part  of  the  conductor,  or  engineer,  or  other  su- 
perior, or  breach  of  duty  on  the  part  of  the  company,  he  could  not 
recover  in  this  action.  In  L.,  C.  &  L,  R.  Co.  v.  Cavens'  Adm'r,  9 
Bush,  559,  the  proposition  before  us  was  under  consideration  by 
the  court,  and  it  was  said:  "It  is  well  settled  that  where  one  enters 
into  the  service  of  another  he  assumes  to  run  all  the  ordinary  risks 
pertaining  to  such  service;  and  this  means  only  that  he  cannot 
recover  for  any  injury  that  his  employer,  by  the  exercise  of  ordi- 
nary care  and  prudence,  could  not  provide  against.  And  it  is 
equally  as  well  established  that,  where  a  number  of  persons  con- 
tract to  perform  service  for  another,  the  employes  not  being  su- 
perior or  subordinate  the  one  to  the  other  in  its  performance,  and 
one  receives  an  injury  by  the  neglect  of  another  in  the  discharge  of 
his  duty,  they  are  regarded  as  substantially  the  agents  of  each 
other,  and  no  recovery  can  be  had  against  the  employer.  Public 
policy  requires  that,  where  the  laborers  are  coequals  and  engaged 
in  laboring  in  the  same  field,  or  on  the  same  railroad  train,  or  in 


master's  liability  for  injuries  to  servant  333 

any  other  employment,  each  should  exercise  proper  care  in  the  con- 
duct of  the  business,  and  look  to  it  that  his  colaborer  does  the  same 
thing;  and,  when  he  is  told  that  this  care  and  prudence  is  his  only 
remedy  against  danger  from  the  negligence  of  those  employed  with 
him,  it  not  only  makes  him  the  more  careful,  but  stimulates  him  to 
see  that  others  exercise  the  same  caution."  And  this  principle  was 
fully  recognized  and  applied  in  L.  &  N.  R.  R.  Co.  v.  Sanders' 
Adm'r,  44  S.  W.  644,  19  Ky.  Law  Rep.  1941 ;  Volz  v.  C.  &  O.  Ry. 
Co.,  95  Ky.  188,  24  S.  W.  119;    Dana  v.  Blackburn,  121  Ky.  706, 

90  S.  W.  237,  28  Ky.  Law  Rep.  695 ;  Martin  v.  Mason  &  Hoge  Co., 

91  S.  W.  1146,  28  Ky.  Law  Rep.  1333;  Pitts,  Hankins  &  Trundell 
V.  Centers,  98  S.  W.  300,  30  Ky.  Law  Rep.  311. 

But  when  the  servant  is  injured  by  employes  of  the  same  mas- 
ter, who  are  not  directly  associated  with  him,  and  with  whom  he 
is  not  immediately  employed,  and  whose  qualifications  for  the  place 
they  occupy  he  has  no  means  of  knowing,  and  in  whose  selection 
he  has  no  voice,  and  over  whose  conduct  and  actions  he  has  no 
control,  and  against  whose  negligence  and  carelessness  he  cannot 
protect  himself,  he  may  recover  damages  from  the  master  for  in- 
juries received  through  their  negligence,  whether  it  be  ordinary  or 
gross,  and  without  any  reference  to  the  position  or  place  the  serv- 
ant causing  the  injury  holds.  And  so  appellee,  whose  injuries  were 
directly  caused  by  the  negligence  of  the  employes  on  the  work 
train,  may  recover  from  the  company,  without  regard  to  which  one 
of  them  was  guilty  of  the  neglect  that  resulted  in  his  injuries. 

The  distinction  between  the  liability  of  the  master  for  injuries 
to  the  servant,  when  the  injury  is  caused  by  the  neglect  of  those 
engaged  directly  with  the  servant,  and  when  it  is  due  to  the  care- 
lessness of  employes  not  immediately  associated  with  him,  was 
first  recognized  by  this  court  in  L.  &  N.  R.  R.  Co.  v.  Collins,  2 
Duv.  114,  87  Am.  Dec.  486,  in  a  case  against  the  company  to  re- 
cover damages  for  personal  injuries  inflicted  by  the  negligence  of 
the  engineer,  where  it  was  said :  "The  company  is  responsible  for 
the  negligence  or  unskillfulness  of  its  engineer  as  its  controlling 
agent  in  the  management  of  its  locomotives  and  running  cars ;  and 
that  responsibility  is  graduated  by  the  classes  of  persons  injured 
by  the  engineer's  neglect  or  want  of  skill.  As  to  strangers,  ordi- 
nary negligence  is  sufficient.  As  to  subordinate  employes  asso- 
ciated with  the  engineer  in  conducting  the  cars,  the  negligence 
must  be  gross.  As  to  employes  in  a  different  department  of  serv- 
ice unconnected  with  the  running  operations,  ordinary  negligence 
may  be  sufficient." 

And  subsequently  this  distinction  was  more  clearly  expressed 
and  applied  thus: 

In  Kentucky  Central  Ry.  Co.  v.  Ackley,  87  Ky.  278,  8  S.  W.  691, 
12  Am.  St.  Rep.  480,  the  action  was  brought  for  personal  injuries 


334  MASTER  AND   SERVANT 

received  by  Ackley,  who  was  an  engineer  upon  a  passenger  train, 
resulting  from  a  collision  with  a  freight  train  of  the  company.  It 
was  contended  by  the  company  that,  as  the  injuries  were  caused  by 
the  negligence  of  employes  in  the  same  grade  of  employment  as  the 
person  injured,  there  could  be  no  recovery.  But  the  court,  in  re- 
jecting this  contention,  quoted  with  approval  the  principle  an- 
nounced in  L.,  C.  &  L.  R.  Co.  v.  Cavens'  Adm'r,  supra,  saying:  "It 
is  argued  in  that  case  that  the  rule  should  be  applied  that  when  a 
number  of  persons  contract  to  perform  a  service  for  another,  the 
employes  not  being  superior  or  subordinate  to  each  other  in  its 
performance,  and  one  is  injured  through  the  negligence  of  another, 
they  are  to  be  regarded  as  the  agents  of  each  other,  and  no  recov- 
ery can  be  had  against  the  employer.  But  it  was  held  that  a  dif- 
ferent rule  prevails  when  the  employment  is  several,  and  when  one 
is  subordinate  to  the  other,  or  occupies  such  a  position  in  the  serv- 
ice with  reference  to  his  colaborer  as  precludes  him  having  any 
control  over  his  actions  or  the  right  to  advise  even  as  to  the  man- 
ner in  which  the  service  is  to  be  performed." 

In  Illinois  Central  Ry.  Co.  v.  Hilliard,  99  Ky.  684,  37  S.  W.  75, 
Hilliard,  who  was  a  conductor,  was  injured  by  the  giving  way  of 
a  ladder  on  one  of  the  cars  in  his  train.  The  company  requested 
the  court  to  say  to  the  jury  that  the  car  inspector,  whose  duty  it 
was  to  keep  the  ladders  in  repair,  and  the  conductor,  were  fellow 
servants  engaged  in  the  same  line  of  service,  and  that  Hilliard 
could  not  recover  unless  the  jury  believed  the  inspector  guilty  of 
gross  negligence.  This  court,  in  commenting  on  this  request,  said 
that  the  instruction  was  properly  refused,  the  conductor  and  in- 
spector "acted  in  different  spheres,  and  neither  could  or  was  re- 
quired to  know  whether  the  other  was  properly  doing  his  duty," 
and  held  that  the  company  was  liable  for  the  ordinary  negligence 
of  the  inspector. 

In  L.  &  N.  R.  R.  Co.  v.  Lowe,  118  Ky.  260,  80  S.  W.  768,  65  L. 
R.  A.  122,  C,  N.  O.  &  T.  P.  Ry.  Co.  v.  Hill's  Adm'r,  89  S.  W.  523, 
28  Ky.  Law  Rep.  530,  and  L.  &  N.  R.  R.  Co.  v.  Hiltner,  56  S.  W. 
654,  21  Ky.  Law  Rep.  1826,  the  rule  announced  in  the  Collins,  Cav- 
ens, and  Ackley  Cases  was  followed.  In  the  cases  of  L.  &  N.  R. 
R.  Co.  V.  Robinson,  4  Bush,  507,  L.  &  N.  R.  R.  Co.  v.  Rains,  23 
S.  W.  505,  15  Ky.  Law  Rep.  423,  and  Robinson  v.  L.  &  N.  R.  R. 
Co.,  24  S.  W.  625,  15  Ky.  Law  Rep.  626,  it  was  apparently  held 
that  an  employe  on  one  train  could  not  recover  from  the  company 
for  the  negligence  of  the  employes  on  another  train  unless  their 
negligence  was  gross;  but  these  cases  may  now  be  regarded  as 
having  been  overruled  by  the  later  ones  above  referred  to,  and  it 
must  be  considered  as  no  longer  an  open  question  in  this  state  that 
there  may  be  a  recovery  in  a  case  like  the  one  before  us,  although 
the  negligence  of  the  person  causing  it  was  ordinary.     Hence  the 


master's  liability  for  injuries  to  servant  335 

court  correctly  instructed  the  jury  that,  if  they  believed  from  the 
evidence  that  the  injury  to  plaintiff's  foot  v^as  the  direct  result  of 
negligence  on  the  part  of  the  agents  or  servants  of  the  defendant 
in  charge  of  the  work  train,  they  should  find  for  the  plaintiff. 
*  *  *  For  error  in  the  amount  of  damages,  the  judgment  must 
be  reversed. 


MARQUETTE  CEMENT  MFG.  CO.  v.  WILLIAMS. 

(Supreme  Court  of  Illinois,  1907.     230  111.  26,  82  N.  E.  424.) 

Action  by  Grant  Williams  against  the  Marquette  Cement  Man- 
ufacturing Company  for  damages  for  personal  injuries.  There  was 
a  judgment  for  plaintiff,  which  was  affirmed  by  the  Appellate  Court, 
and  defendant  appeals. 

Cartwright,  J.^*  *  *  *  There  were  a  number  of  motors  on 
the  main  floor  of  the  cement  factory,  and  one  of  them  operated 
what  was  called  a  "pan  conveyor"  in  the  basement.  The  appli- 
ance for  starting  and  stopping  this  motor  was  in  the  basement, 
where  it  could  not  be  seen  from  the  motor.  To  start  and  stop  the 
motor  it  was  necessary  to  go  down  in  the  basement  and  throw  a 
switch,  in  order  to  let  the  current  of  electricity  into  the  motor  or 
shut  it  off.  On  June  30,  1903,  in  the  forenoon,  plaintiff  went  to 
this  motor  and  saw  that  the  brush  was  out  of  the  brush  holder, 
and  the  brush  holder  was  dragging  in  the  commutator,  and  the 
ring  was  stopped  in  the  motor.  In  that  condition  the  motor  would 
soon  burn  up  and  destroy  valuable  machinery.  Plaintiff  then  went 
to  John  Coleman,  the  foreman  of  the  mill,  and  told  him  the  condi- 
tion of  the  motor ;  but  Coleman  refused  to  have  the  motor  stopped 
to  put  it  in  order,  on  account  of  the  work  that  was  being  done  by 
it  at  that  time.  Plaintiff  then  went  to  Fred  McNeil,  the  electrician 
in  charge  of  the  electrical  department,  and  told  him  that  if  he  did 
not  go  up  there  and  attend  to  the  motor  it  would  be  burned  out 
in  a  few  minutes.  McNeil  went  with  plaintiff  and  looked  at  the 
motor,  and  then  had  a  talk  with  Coleman  near  by,  after  which 
he  told  the  plaintiff  to  watch  the  motor  a  few  minutes  and  then 
stop  it,  and  he  would  see  that  no  one  would  start  the  motor  or  in- 
terfere with  the  plaintiff  until  he  had  fixed  it.  AIcNeil  then  left, 
and  plaintiff  went  down  in  the  basement  and  stopped  the  motor 
by  throwing  the  switch.  William  Crockett  was  in  charge,  under 
Coleman,  the  mill  foreman,  of  the  pan  conveyor  and  the  appliance 
for  letting  clinkers  into  the  conveyor.  Crockett  had  charge  of  the 
switch  and  starting  block,  and  was  standing  near  by.  After  the 
plaintiff  stopped  the  motor  he  told  Crockett  that  he  was  working 
on  the  motor  and  not  to  start  it  again  until  he  told  him.    Plaintiff 

18  Part  of  the  opinion  is  omitted. 


336  MASTER  AND  SERVANT 

ran  upstairs  and  to  the  motor,  and  commenced  to  make  the  neces- 
sary repairs.  In  doing  so  he  reached  his  hand  in  to  feel  whether 
the  oil  plug  was  tight,  or  not,  where  it  had  been  leaking  oil,  and 
some  one  started  the  motor,  resulting  in  the  injury. 

One  reason  presented  why  the  court  ought  to  have  given  the 
mstruction  is  that  the  negligence  which  caused  the  injury  was  the 
failure  of  McNeil  to  see  that  the  motor  was  not  started,  and  his 
negligence  was  that  of  a  fellow  servant.  There  is  no  evidence  as 
to  who  started  the  motor,  but  Crockett  said  he  did  not  do  it.  Who- 
ever it  was,  there  is  no  claim  that  he  was  a  fellow  servant  of  the 
plaintiff,  and  under  the  circumstances  the  act  was  a  wrongful  and 
negligent  one,  and  was  an  efficient  cause  of  the  injury.  Crockett 
was  not  a  fellow  servant  of  the  plaintiff,  and  was  the  person  in  the 
immediate  charge  of  the  pan  conveyor  and  switch.  He  was  no- 
tified that  plaintiff  was  working  on  the  motor  and  that  it  was  not 
to  be  started  until  he  was  through.  So  far  as  McNeil  was  con- 
nected with  the  injury,  the  evidence  did  not  tend  to  prove  that  he 
was  a  fellow  servant  with  the  plaintiff  in  reference  to  this  matter. 
The  injury  did  not  result  from  the  exercise  of  authority  by  McNeil 
over  the  plaintiff,  but  it  was  the  duty  of  the  plaintiff  to  follow  the 
directions  of  McNeil  as  his  superior,  and  the  assurance  of  McNeil 
that  the  motor  should  not  be  started  was  not  the  act  or  assurance 
of  a  fellow  servant,  but  was  that  of  one  having  authority.  While 
it  appears  that  McNeil  and  the  plaintiff  may  have  worked  together 
sometimes  as  fellow  servants,  they  were  not  co-operating  with  each 
other  in  performing  any  act  of  service  in  relation  to  this  motor. 

It  is  further  urged  that  McNeil  had  no  authority  to  order  the 
motor  shut  down.  The  evidence  for  the  plaintiff  was  that,  after 
Coleman  said  he  would  not  shut  it  down,  McNeil  talked  with  Cole- 
man a  few  minutes  and  then  told  plaintiff  to  shut  it  down.  Plain- 
tiff testified  that  he  did  not  hear  the  conversation,  and  that  they 
were  about  25  feet  from  him.  The  court  could  not  say  that  plain- 
tiff did  not  have  good  reason  to  believe  McNeil  was  authorized 
at  that  time  to  have  the  motor  stopped.  *  *  *  Judgment  af- 
firmed. 


QUINLAN  V.  LACKAWANNA  STEEL  CO. 
(Court  of  Appeals  of  New  York,  1908.    191  N.  T.  329,  84  N.  E.  73.) 

Action  by  Patrick  Quinlan  against  the  Lackawanna  Steel  Com-* 
pany.  From  a  judgment  of  the  Appellate  Division  (107  App.  Div. 
176,  94  N.  Y.  Supp.  942),  affirming  a  judgment  entered  on  a  non- 
suit, plaintiff  appeals. 

Haight,  J.  This  action  was  brought  to  recover  damages  for  a 
personal  injury.    The  plaintiff  was  in  the  employ  of  the  defendant, 


master's  liability  for  injuries  to  servant  337 

engaged  in  operating  an  electric  crane  in  the  defendant's  plate 
shop.  The  building  was  about  75  feet  in  width  and  several  hun- 
■^red  feet  in  length.  The  crane  was  about  30  feet  high,  constructed 
n  such  a  manner  that  it  could  be  run  upon  railroad  tracks  length- 
wise through  the  building,  having  at  the  top  heavy  steel  girders 
running  crosswise  of  the  building,  upon  which  a  carriage  with 
tackle  could  be  run  back  and  forth,  so  that  the  material  which  was 
used  in  the  process  of  manufacture  in  the  shop  could  be  hoisted  up 
and  carried  to  any  part  of  the  building  in  which  it  was  to  be  used. 
About  15  feet  from  the  ground,  upon  one  end  of  the  crane,  was  a 
coop  which  was  approached  by  a  ladder,  in  which  the  operator 
stood,  and  from  which  place  he  operated  the  crane  by  electric  power 
furnished  through  wires  by  means  of  switches  and  levers  contained 
in  the  coop.  On  the  day  in  question  he  had  been  operating  the 
crane  for  an  hour  or  two,  and  then  he  threw  the  switch  open  so 
as  to  cut  off  the  electricity  from  the  wires  above,  ascended  the 
crane  to  the  carriage  above  for  the  purpose  of  oiling  the  bearings 
and  while  thus  engaged  one  Knapp,  another  employe  of  the  defend- 
ant, entered  the  coop,  turned  on  the  electricity,  causing  the  plain- 
tiff to  receive  a  shock  from  which  he  fell  from  the  carriage  above 
to  the  floor  beneath,  receiving  the  injuries  for  which  this  action 
was  brought. 

It  appears  from  his  testimony  that  one  Greenough  was  the  su- 
perintendent in  charge  of  this  and  other  shops  of  the  defendant  in 
so  far  as  their  manufacturing  department  was  concerned,  and  that 
Knapp  was  a  foreman  under  him  in  charge  of  the  plate  shop  in 
which  they  had  60  or  65  men  engaged  at  work;  that  Greenough 
visited  the  shop  from  time  to  time,  gave  his  orders  to  Knapp  with 
reference  to  the  work  that  was  to  be  done,  and  that  Knapp  gave 
directions  to  the  men  upon  the  floor  of  the  shop  as  to  the  work  that 
each  was  to  do;  that,  when  they  had  iron  or  other  material  that 
was  to  be  carried  from  one  part  of  the  shop  to  another  by  means 
of  a  crane,  he  signaled  the  plaintiff  in  the  coop  of  the  crane,  whose 
duty  it  was  to  then  move  it  to  the  point  where  the  material  was 
piled,  and  after  it  had  been  hitched  on  to  the  tackle  to  elevate  it 
from  the  floor  and  carry  it  to  the  place  at  which  it  was  designed  to 
be  landed.  It  further  appeared  that  there  was  another  department 
in  the  defendant's  service  known  as  the  "electrical  department," 
of  which  one  Tower  was  the  superintendent,  who  had  charge  of  the 
electrical  machines;  that  he  employed  the  plaintiff  with  others  as 
cranemen  in  the  so-called  electrical  gang,  and  that  the  employes 
of  the  electrical  gang  were  required  to  report  to  him  every  morn- 
ing and  at  the  close  of  their  day's  work;  that  he  assigned  the 
plaintiff  to  the  crane  in  question,  and  placed  its  operation  in  his 
hands,  but  he  was  to  receive  orders  from  Knapp  as  to  time  and 
CooLET  P.&  D.Rel.— 22 


338  MASTER  AND   SERVANT 

place  that  material  was  to  be  moved  by  means  of  the  crane.  Dur- 
ing the  time  that  the  plaintiff  was  on  duty  no  other  person  op- 
erated the  crane. 

It  is  thus  apparent  that  the  plaintiff  was  employed  by  reason  of 
his  familiarity  with  the  use  of  electrical  power,  and  that  he  was 
assigned  to  the  work  of  operating  this  particular  electrical  ma- 
chine by  reason  of  his  experience,  and  that  it  became  his  duty, 
and  his  alone,  to  apply  and  cut  off  the  power  and  operate  the  crane 
in  the  performance  of  the  work  for  which  it  was  designed.  It  is 
also  apparent  that  Knapp,  although  a  foreman  in  the  shop  having 
charge  of  the  work  that  was  to  be  done  by  the  men  employed  in 
the  manufacturing  department,  had  no  duty  to  perform  with  ref- 
erence to  the  operation  of  the  crane  other  than  to  signal  to  the  op- 
erator as  to  the  place  to  which  it  was  to  be  moved  and  the  material 
to  be  carried.  It  does  not  appear  that  he  possessed  any  knowledge 
or  had  had  any  experience  with  reference  to  the  use  of  electricity, 
or  had  any  right  or  authority  whatever  to  enter  the  coop,  and  there 
interfere  with  the  electrical  appliances  by  which  the  crane  was  op- 
erated. We  therefore  conclude  that  at  the  time  he  entered  the 
coop  of  the  crane  and  turned  on  the  power  he  did  that  which  he 
was  unauthorized  to  do  and  which  was  not  within  the  scope  of 
his  employment,  and  consequently,  it  was  not  an  act  of  superin- 
tendence within  the  meaning  of  the  employer's  liability  act  (Laws 
1902,  p.  1748,  c.  600). 

The  judgment  should  be  affirmed,  with  costs. 


GUILMARTIN  v.  SOLVAY  PROCESS  CO. 

(Court  of  Appeals  of  New  York,  1907.     189  N.  Y.  490,  82  N.  E.  725.) 

Action  by  Dennis  Guilmartin  against  the  Solvay  Process  Com- 
pany. From  an  order  of  the  Appellate  Division  (115  App.  Div.  794, 
101  N.  Y.  Supp.  118),  reversing  a  judgment  of  the  Trial  Term  for 
plaintiff  and  granting  a  new  trial,  plaintiff  appeals. 

CuLLEN,  C.  J.  This  action  is  brought  under  the  Employer's  Lia- 
bility Act,  Laws  1902,  p.  1748,  c.  600,  servant  against  master,  to 
recover  damages  for  personal  injuries.  The  defendant  was  en- 
gaged in  the  manufacture  of  soda  ash  and  similar  products.  The 
plaintiff  had  been  in  defendant's  employ  for  a  number  of  years, 
and  for  the  last  portion  of  the  time  his  duty  was  to  oil  the  machin- 
ery. At  the  time  of  the  accident  a  belt  in  defendant's  factory,  run- 
ning from  the  main  shaft  to  a  counter  shaft,  had  become  so  loose 
as  to  wind  around  the  pulley  on  the  shaft.  The  belt  seems  to  have 
been  stronger  than  the  attachment  of  the  pulley  to  the  shaft,  and 
after  it  had  been  drawn  as  taut  as  possible  from  the  counter  shaft 


MASTER  S   LIABILITY   FOR   INJURIES    TO   SERVANT  339 

the  pulley  commenced  to  revolve  on  the  shaft.  To  remedy  this 
condition  of  the  machinery  it  was  necessary  to  loosen  the  belt. 
One  Mullin  was  the  foreman  of  the  shift  or  gang  to  which  the 
plaintiff  belonged.  Mullin  had  power  to  stop  the  machinery  in 
case  of  accident  or  emergency.  On  being  informed  of  the  accident 
he  had  the  movement  of  the  engine  slowed  to  a  certain  extent,  but 
did  not  have  it  stopped,  and  then  directed  the  plaintiff,  with  other 
workmen,  to  cut  the  lacing  of  the  belt;  he  personally  joining  in  the 
work.  After  the  belt  was  cut  he  directed  one  of  the  workmen  to 
throw  the  loose  end  on  the  floor.  The  shaft  pulley,  being  relieved 
from  the  strain  of  the  taut  belt,  again  revolved  with  the  shaft  and 
commenced  to  wind  up  the  belt,  the  loose  end  of  which  struck  the 
plaintiff".  He  was  drawn  over  the  shaft  and  received  injuries  which 
resulted  in  the  loss  of  his  leg. 

Two  questions  were  submitted  to  the  jury :  First,  whether  Mul- 
lin was  a  person  whose  sole  or  principal  duty  was  that  of  super- 
intendence; second,  whether  it  was  negligent  not  to  have  stopped 
the  machinery  when  the  plaintiff'  was  put  at  work  to  repair  the 
injury  to  the  belt  and  pulley.  The  jury  found  a  verdict  for  the 
plaintiff.  A  motion  for  a  new  trial  was  made  and  denied.  From 
the  order  denying  that  motion  and  the  judgment  entered  on  the 
verdict  an  appeal  was  taken,  and  both  were  reversed  by  the  Ap- 
pellate Division  by  a  divided  court,  and  a  new  trial  granted. 

The  order  of  reversal  states  that  it  was  made  solely  on  questions 
of  law,  the  facts  having  been  examined,  and  no  error  found  therein, 
and  hence  an  appeal  from  the  order  lies  to  this  court.  The  ground 
on  which  the  Appellate  Division  placed  its  decision  was  that  the 
negligence  of  Mullin  in  failing  to  stop  the  engine,  if  negligence  it 
was,  was  the  negligence  of  a  fellow  servant  in  a  detail  of  the  work 
for  which,  under  the  decisions  in  Crispin  v.  Babbitt,  81  N.  Y.  516, 
Z7  Am.  Rep.  521 ;  McCosker  v.  Long  Island  Railroad  Co.,  84  N. 
Y.  77 ,  and  Foster  v.  International  Paper  Company,  183  N.  Y.  50, 
75  N.  E.  933,  the  master  was  not  liable,  and  that  therefore  the  de- 
fendant's motion  to  dismiss  the  complaint  made  at  the  close  of  the 
evidence  should  have  been  granted.  We  deem  this  view  of  the 
Appellate  Division  erroneous.  The  two  earlier  cases  cited  by  the 
court  below  arose  before  the  enactment  of  the  employer's  liability 
act.  If  the  accident  in  the  third  case  occurred  after  the  enactment 
of  that  statute,  the  action  was  not  brought  under  that  act. 

Therefore  the  decision  in  none  of  the  cases  disposes  of  the  pres- 
ent case,  which  is  substantially  controlled  by  our  recent  decision 
in  McHugh  v.  Manhattan  Railway  Company,  179  N.  Y.  378,  72  N. 
E.  312,  and  Harris  v.  Baltimore  Alachine  Elevator  Works,  188  N. 
Y.  141,  80  N.  E.  1028,  which  were  based  on  the  employer's  liability 
act.  That  statute,  as  said  by  Judge  Gray  in  the  later  case,  "gave 
an  additional  cause  of  action,  because  it  prescribed  that  a  master 


340  MASTER  AND   SERVANT 

shall  be  liable  for  the  negligence  of  the  superintendent  or  the  per- 
son acting  as  such.  At  common  law  such  a  liability  was  not  rec- 
ognized, unless  the  superintending  servant  was  the  alter  ego  of  the 
master  with  respect  to  the  work."  To  render  the  master  liable 
the  negligence  must  not  only  be  on  the  part  of  the  person  who 
is  acting  as  superintendent,  but  also  in  an  act  of  superintendence. 
But  if  the  act  be  of  that  character  the  fact  that  in  a  sense  it  is 
a  detail  of  the  work  will  not  relieve  the  master  from  liability.  In 
the  prosecution  of  many,  if  not  most,  works,  superintendence  is 
a  detail  of  the  work,  in  the  accurate  use  of  that  term.  It  is  often 
so  denominated  in  the  older  cases,  and  properly  so,  because  before 
the  statute  it  was  unnecessary  to  distinguish  between  negligence 
of  a  superintendent  and  that  of  a  colaborer  of  the  same  grade  as 
that  of  the  person  injured  so  far  as  any  Hability  of  the  master 
was  involved. 

The  statute  has  changed  this.  In  the  McHugh  Case,  the  defend- 
ant was  held  liable  for  the  negligence  of  a  train  dispatcher  in 
starting  a  train.  The  dispatcher  performed  that  act,  doubtless, 
scores  of  times  a  day,  and  its  performance  was  a  mere  detail  of  his 
ordinary  day's  work.  Therefore  the  question  in  any  case  brought 
under  the  statute  is  not  whether  the  negligent  act  is  a  detail  of 
the  work,  but  whether  it  is  a  detail  of  the  superintendent's  part 
of  the  work,  or  of  the  subordinate  employes  and  servants.  In  the 
present  case,  had  the  foreman,  MuUin,  attempted  to  stop  the  engine 
himself,  and  so  carelessly  done  the  work  as  to  cause  injury  to  other 
ernployes,  that  might  very  well  be  deemed  the  negligence  of  a  co- 
servant  for  which  the  master  would  not  be  liable,  but  the  deter- 
mination of  the  question  whether  the  machinery  should  be  stopped 
before  the  men  were  put  to  work  on  it  was  of  a  very  different  char- 
acter. None  of  the  other  workmen  could  direct  the  engine  to  be 
stopped.  Mullin  alone  had  that  power.  His  direction  in  reference 
thereto,  or  failure  to  direct,  was  an  act  of  superintendence.  At 
least,  the  jury  was  authorized  to  so  find. 

It  is  contended  by  the  counsel  for  the  respondent  that  the  fail- 
ure to  stop  the  engine  was  not  a  negligent  act,  and  that  the  acci- 
dent which  occurred  was  one  which  could  not  have  been  antici- 
pated or  foreseen.  It  requires  nothing  more  than  a  perusal  of  the 
numerous  accident  cases  found  in  the  reports  of  this  court  to  show 
that  working  on  moving  machinery  involves  great  danger  of  per- 
sonal injury.  While  it  is  true  that  the  particular  manner  in  which 
this  accident  occurred  is  quite  exceptional,  it  is  equally  true  that 
the  jury  was  authorized  to  find  that  the  work  was  inherently  dan- 
gerous and  involved  liability  to  accident  of  some  kind.  There  was 
evidence  tending  to  show  that  stopping  the  machinery  at  the -par- 
ticular time  would  involve  injury  to  the  plant  and  product.  This 
might  justify  a  failure  to  stop  the  engine,  but  the  evidence  on  the 


master's  liability  for  injuries  to  servant  34:1 

subject  simply  presented  a  question  of  fact  for  determination  by 
the  jury. 

The  objection  that  the  plaintiff  assumed  the  risk  is  answered  by 
the  provision  of  the  statute,  which  enacts:  "The  question  whether 
the  employe  understood  and  assumed  the  risk  of  such  injury,  or 
was  guilty  of  contributory  negligence,  by  his  continuance  in  the 
same  place  and  course  of  employment  with  knowledge  of  the  risk 
of  injury  shall  be  one  of  fact,  subject  to  the  usual  powers  of  the 
court  in  a  proper  case  to  set  aside  a  verdict  contrary  to  the  evi- 
dence." The  Appellate  Division  might  have  reversed  the  judgment 
on  the  ground  of  assumed  risk,  but  in  affirming  the  facts  it  has  re- 
fused to  exercise  that  power. 

The  order  of  the  Appellate  Division  should  be  reversed,  and  the 
judgment  of  the  Trial  Term  affirmed,  with  costs  in  both  courts. 


c^  /\ 


P1TBLI8HIN8  CO.,  PBtKTHBS,  ST.  PAUI>,  HIKlf. 


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